Custody


#1

A year and a half ago, my ex was found in contempt for interfering with visitation on a summer visitation time one time, not repeatedly. It was on a temporary order. The family law judge order her to allow extra time during make up for the time lost. We went for a permanent trial with a different criminal law judge since the judge on our case was very busy. She didn’t have a lawyer. I did have a lawyer. The judge found that because she was in contempt with the previous judge that he changed the custody to me having temporary custody to be reviewed in a year nothing permanent. She has been not interfered with visitation from that point. Now I am not able to take care of our son because I travel extensively with the military so we came up with a agreement that went back to our original custody order with her having primary custody. Since then she has told me she would like to move back to her home state to get more support from family since I am gone at least 6 months out of the year, travel from state to state between my returns to NC, my other sons lives with my relatives since I am unable to care for him and I can"t really be involved in my sons day to day activities like medical appointments, schooling. I am trying to bring my sons down. I am also trying to delay my travels for a year to be more involved but I don’t think I can accomplish that in the short term. I will also be leaving the state to go to another duty station for 2-3 years but I do not know the time frame. She filed for another permanent trial to be heard and she has a attorney. We also have another different judge. Since her contempt was more than a year ago and she has been taking care of or son since I have been gone 3 months, then 8 months last year into this year. She has told me that she plans to move either way because she is stressed from my absences and no family support. She also has a daughter from a previous relationship and feels it is not fair to her daughter to not be around her family because of our custody issue with our son. Can I allow my mother to come down and watch my son if she moves if the court denies my son to move? If she moves and I have to travel for a few months, will there be another trial to allow her to move and give custody back to her? I know they can not stop her from moving.Will the judge more likely then not,let her with your son move out of state given what I have told you? I do not want to lose my son and I have contested the move. She is a good mother but I haven’t had a chance to develop a bond with my son due to my duties.


#2

Relocation cases are always tough. The reason is that more often than not the court finds that the best interests of the children are most often served when they have contact with both parents on a regular basis, however there are other factors that are considered as well, such as the presence of an extended family, good schools, and other such factors.

If her move makes your visitation impractical she cannot move without your permission. If you do not agree to the move, she will have to get permission from the court by filing a motion to modify custody.

Once filed, it can take anywhere from a few weeks to a few months for the court to hear your case, depending on the docket in your county. I suggest you meet with an attorney in your area as soon as possible to get the ball rolling on your case before you leave for duty.


#3

Thank you! I am away on duty now but I have been extended 3 times and have asked the court for a continuous on the matter twice which I hope does not upset the judge. We will have a trial when I get back.But since my son doesn’t have regular contact with me due to my frequent duty assignments already, I have another son that lives in the care of mother because of my asbences and both my ex and I are not from this state where we have no extended family, would she be more likely be allowed to move? She has found good schools in the area she is moving. They are the best schools in the county. She always make sure he is in a good school system but he is in Cary school now which also has a good school system already.

What happens if she leaves, gives me primary custody and then I am assigned in another state? Will we have to go back to court? She does not work because she has a medical condition. That is the main reason she wants family to help with the children.


#4

If she gives you primary custody in this state, and she leaves this state on her own, then she cannot try to get custody back if you move to a third state(under NC law) unless she can show that there was a substantial change in circumstances affecting the best interest of the child.


#5

Last question(I hope)! If she stays in the state and I am assigned in another state for 2-3 years can she move from NC? Would we have to go back to court or would it be automatic since it isn’t making visitation difficult? I am trying to figure out if it is worth fighting if I know I will be leaving the state in the future anyway.


#6

Well, it really depends. If you are maintaining a strong relationship with frequent visitation of the kids, and will be able to continue that in the new state you are stationed in (say VA or SC, TN, etc.), then you can make the argument that if she then wants to move to CA, that would be detrimental to your relationship to the children. If you are stationed across the country and are only able to see your kids once a month or so, then if she wanted to move to another state (where you can still fly in once a month to see them), then you wouldn’t have much of an argument against it.


#7

If she tell the judge that she is willing to make visitation once a month, is it possible that the judge can make that arrangement now even though we are in the NC now but I am away alot? She wants to move to northern Ohio area.


#8

Almost anything is possible with a custody hearing. However, you can argue that even if she agrees to one weekend a month, it will be much more of a burden for you to 1) presumably see your children less than you do now (if you see them more than 1x a month) and 2) it will be a greater expense to you to have to travel out-of-state to see them compared to now. However, because you are in the military, it is possible for a judge to allow her to move back to where her support system is. He will look at all of the relevant factors at play and decide what would be in the best interest of the children.


#9

Thanks,

Since judge changed custody to me and he gave me temporary custody a year ago, then we changed custody back to her in a parenting agreement,
Does her previous contempt from a year ago matter in regards to her requesting to move?


#10

A judge can always consider it and you might choose to present it into evidence. She could always claim though that if you were so worried about her impeding your visitation again, you wouldn’t have agreed to let her have custody in the agreement. So, I cannot say what weight the judge would give to that evidence.