STBX Wants to Move w/Children - Custody/Support Could Change

North Carolina Divorce Law Divorce and Separation Answers
1

I was recently informed by my STBX that she had met someone and plans to marry him late next year and move there with our children. He lives almost three hours away.

I have three children with whom I share custody (STBX is the primary physical custodian, but we can choose to adjust that to joint custody in the future). One of my children will turn 18 before this marriage takes place, so any custody agreement with that oldest child will likely not be affected. My second child is a young teen and I have custody of her for 4 out of every 14 days, plus alternate year holidays (this is currently also the case with my oldest child). Finally, I have shared (50/50) custody of my youngest, pre-teen child. This is all agreed upon in our separation agreement, which is not tied to a divorce decree because we are still currently in the separation stage. We have been separated for more than one year, so the divorce can be filed at any time now.

My STBX has already informed my children that they will be moving with her and has told them they will be going to school there. This is based on what my youngest child has told me of her own accord when she asked me if I would be upset if she moved there and went to school there. I told her that before we get into that, since it hasn’t happened yet, that I would need to talk to her Mom before we worry about where she is moving to, and in so doing, I tried to be as neutral in my talk with her (my daughter) as possible. My STBX has only briefly discussed with me that she wants to work with me on a new custody settlement to allow this to happen and wants to try to make it as fair as possible. However, in trying to do the math of enabling me to keep my two youngest children for the same amount of time as I currently have, there is no fair scenario that can be had that will allow this to happen. Even for me to agree on an every weekend schedule, plus summers, given the time/distance (3-4 hours round trip, meeting halfway, with Friday and Sunday traffic)…the fact that I would have to drive to pick them up and return them every weekend would simply not work for me.

Our current agreement states, and I quote:

[quote]Relocating. Unless the parties otherwise agree in a writing which is signed and notarized, the following shall occur:

In the event either party wishes to relocate with the children more than 30 minutes (peak traffic) away from the other parent’s residence, the first parent shall, as soon as possible, notify the other parent of his or her intentions in writing and will not relocate until a new time-sharing agreement is negotiated or is ordered by a court of law.  The parents agree that once written notification is given, they shall, in good faith, actively participate in negotiating a new time sharing agreement according to the following timeline: 

Self-negotiation (parent to parent) - 14 days from the date of the notification
Negotiation through mediation - 28 days from the date of the notification
If the parties reach an impasse they agree to procure the unbundled services of a Parenting Coordinator.

[/quote]

I had hoped that this one possibility in our separation/divorce – that my STBX would consider moving so far away and that it would involve the possibility of adjusting custody – would never occur and that we would always live close enough to allow our children to continue to attend the school system they are already accustomed to. I feel that my STBX has unduly influenced my children to think that they will be moving away without first discussing it with me and going through the above process in our agreement. That said, I’m not sure how all this would play out if I were not to agree to a change and wish to keep it as the status quo. I don’t know if she would try to move them anyway, or if she even can, if I do not agree to anything by next year. I would hope not. But what would I do in that case?

Finally, if I were to find a scenario to agree with, allowing this to happen, but it changes the amount of time I get to spend with my children (i.e.: reduces the time), would child support also change? I am already struggling financially with the current arrangement and need to look into working weekends. I currently work a full time day job. But to change the agreement would impede my ability to increase my income, to work weekends, and it would increase the amount of gas consumption of my car, wear and tear, etc.

I do not know what to do. Please help me.

Thank you in advance for your input.

2

I forgot to mention that my STBX told me that after she gets married, she can choose to work, but will no longer have to work. If she chooses not to work, does that mean she will have chosen to voluntarily change her work status and therefore the amount of child support I pay now would remain the same, or will the amount have to adjust? The combination of losing time with my children and her reduced-to-zero work hours would put me way above an amount I would have to pay for child support (hundreds of dollars) if it were to be adjusted, and that is an amount I simply cannot afford. With the current agreement in place, it appears that if we cannot self negotiate, and neither of us can afford a mediator or a Parent Coordinator, it would then go to a court of law. If I am well prepared with all my financials (income/expenses), will a judge take my situation into consideration and at least keep my child support payments the same?

3

If you cannot come to an agreement about the move or the visitation schedule if she does move, you need to immediately file a child custody claim so that the court can decide where the children will reside and what the schedule will be.

4

If the court were to decide that the children will spend more time with their mother, and if she no longer works, will the court also adjust the amount of child support in favor of the lesser time spent with my kids and her non-income? Will they look at my financial situation first and consider it a financial burden on me to increase it more, or will they not consider that and adjust it according to the normal calculation and say I must pay that? As I said in my supplemental post, I am already financially strapped. I can’t possibly pay more in child support.

5

Sorry I failed to respond to your questions about child support before. First, if you agree to the change in the custodial schedule to allow her to move with the children, you could include in your agreement either that she will reimburse you for your transportation costs or you can rerun the child support calculator and use the extra amount you will have to pay in transportation costs as an extraordinary expense. If she voluntarily quits her job, you should continue to impute her current wages when running the calculator. The child support guidelines state:

“If the court finds that a parent’s voluntary unemployment or underemployment is the result of the parent’s bad faith or deliberate suppression of income to avoid or minimize his or her child support obligation, child support may be calculated based on the parent’s potential, rather than actual, income.”

Even though her decrease in income may not technically be “bad faith” courts are inclined to impute income in situations such as these because regardless of the change in her financial situation, she still has an obligation to provide support for her children.

The biggest question about whether your support obligation would change would depend mainly on the number of overnights that the children are spending with you, but your overall obligation may still go down since one of your children is aging out.