Navigating Custody and Relocation: What Parents Need to Know with Theresa Viera

Note: Our Podcast, “A Year and A Day”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime – 00:00:05:

Welcome to A Year and a Day. I’m Jaime Davis, board-certified family law attorney at Gailor Hunt. On this show, I talk with lawyers, psychologists, and other experts with the goal of helping you navigate divorce without destruction. In this episode, I’m talking with Theresa Viera. Theresa founded Modern Legal in 2020 amidst the pandemic and drastic changes to our judicial system. Her law firm is dedicated to helping families navigate the legal system by utilization of the law, education, and innovation. She obtained her law degree at the University of North Carolina School of Law, has been practicing family law for over 11 years, and is a certified family financial mediator. Her team provides legal, mediation, and arbitration services in North and South Carolina. Thanks for joining me, Theresa.

Theresa – 00:00:59:

Thank you for having me.

Jaime – 00:01:01:

So today I thought we could talk about a topic that is becoming more and more prevalent in custody cases. And that topic is relocation and what happens when parents are separated and one parent wants to move to a different city, state, or even country with their kids. So when we talk about relocation in the context of a custody case, what does that mean?

Theresa – 00:01:26:

That’s a great question. I come across that question often, especially because when parties separate or divorce, they don’t necessarily want to live in the same city or town or in the same zip code, really, than the other parent, even if they have a child in common. I would say, importantly, they may have family members or are marrying someone else to start the next chapter of their lives, and that next chapter is just not in the same vicinity as the former parent. But in those situations, it gets tricky because our judges, specifically, like to keep the children in as stable a situation as possible. And so that would include keeping the child in the same school that they have always been in, maybe around the same professionals, such as a doctor or a therapist that the child is used to going to, as well as their friend group and other family members that may be in the area where they’ve grown up to this point.

Jaime – 00:02:24:

If a separated parent wants to relocate with their child, what do they need to consider?

Theresa – 00:02:31:

I would say they need to consider various factors that influence the child specifically. When it comes to custody matters, I like to tell my clients, the judge really doesn’t care about your needs. It doesn’t necessarily care about the other parent’s needs. Who the judge really wants to focus in on is the child’s needs. And so, yes, you may desire to, say, move to another city because of a new job. And financially and career-wise, that may be a great choice for you. But it may not be the best choice for the child because they’ve just gotten used to the school that they’re in. Or maybe they have a close friend group and other factors that influence that child’s well-being that is really important where they have been raised up to that point. So a parent really wants to not only look at the lens of what they may need, but the lens of what the child may need.

Jaime – 00:03:23:

Yeah, and I think it’s also really important to consider what the child’s relationship is like with the other parent. I mean, if the child has a really good relationship with both parents, just because you want to move for whatever reason, even if the move would potentially be beneficial for the child as well, you know, when you consider how it would impact the child’s relationship with the other parent, it still may not be what’s best for the child.

Theresa – 00:03:47:

Yeah. And even if a relationship, say, didn’t work between the parents, whether that’s marital or just a romantic relationship that failed, that doesn’t mean the other parent doesn’t have a valuable relationship with the child. And I would say that judges do understand that from a mental health and child development standpoint, the influence and the benefit of a good relationship with both parents is paramount for a child to be raised in a stable environment. And if that’s important for the child, then it’s tricky to suddenly throw into the mix the idea that that child may be taken away from one of the parents that they have grown close to, you know, since birth or whenever that custody arrangement was put into place.

Jaime – 00:04:36:

So if a parent wants to relocate with their child, do you think it matters whether or not the custody schedule that’s currently in place gives that parent primary custody, meaning they have the child most of the time, or whether they have joint, like, equal custody with the other parent? Do you think that impacts it?

Theresa – 00:04:56:

I think parents may want it to impact that ability more so than it does. It is definitely a factor. So if, for example, due to whatever reason, we have one parent that has the child primarily and the other parent has the child every other weekend that has been going on for years. And so the child is very much accustomed to that. That parent that has primary custody may think, okay, well, I can just move to a different city. Or better yet, they think that they can move to a different state. The problem is, is that arrangement is not only influenced by that primary parent’s time. That custody arrangement is influenced by the school the child goes to, the doctor they see, the friends they have, the greater environment. And if that every other week and parent can suddenly provide that stability. Other parent may actually turn into the primary custodian at that point if the other parent does move away. That’s a much more common risk, if you will, than I think maybe parents would like to think about.

Jaime – 00:06:04:

Yeah, I think it’s really tricky. And I think these cases are really hard to predict what a judge might do with them. In your experience, what does a judge consider when they are trying to determine whether or not the child moving is in the child’s best interest?

Theresa – 00:06:22:

That’s a really good question. I feel like I’m going to give you the typical lawyer response of it depends. And it really does. It does depend on the circumstance of the child. I’ve had various move away cases, if you want to call them that. And the move away could be just a city over. So maybe an hour away, two hours away. I’ve also had cases where the move away is one parent remains in North Carolina and the other parent goes to California. And since every case is so unique, it really does come back to what is best, the best interest standard for the child. And if, for example, the parent who is here in North Carolina does not show up for the court hearings, decides to basically abdicate any parental time or responsibility over the child, then yeah, we could probably get custody to the child that’s moved or to the parent that’s moving to California. On the flip side, if, you know, we have a parent or both parents have shared equal time, with the child here in North Carolina and the child has a stable environment, relatively speaking with both parents, but one parent is about to move away, that’s a very different analysis for a judge or attorneys in our position. And so in that circumstance, it could be, okay, well now that, you know, there’s this change of geography, simply put every other week is not going to work for a second grader. So now we have to have a school year parent and a summertime parent, for example, or a holiday parent. And that school year parent may be the same parent that has the stability can provide the same environment here in North Carolina for that child.

Jaime – 00:08:01:

So in cases where the judge allows the child to move, and let’s say it’s an out-of-state move, what schedules do you typically see put in place for the child?

Theresa – 00:08:13:

That’s a great question because we have to take into consideration clearly the distance between the homes of both parents. We have to take into consideration the other factors of the child’s life, such as the school schedule. And we have to take into consideration the financial circumstances of the parties. So, for example, I have had the case where a judge did agree to allow, I think it was three children moved to California with the mother as a primary custodian. Father stayed in North Carolina. However, he traveled a lot for work. So for him, he was able to incorporate a custody schedule where he could see the kids almost every other weekend and long weekend because he was not only traveling to California for work, but he was traveling, honestly, around North America. So he incorporated the travel into his day-to-day. And instead of coming back to North Carolina, instead, he booked the flight to California. Another factor in that consideration is travel costs. So travel costs are a big consideration because a flight to, say, from Charlotte to San Diego is a much different flight than Charlotte to Atlanta or maybe even a drive between our offices of Charlotte and Raleigh, right? And so if we have individuals that aren’t able to travel as much simply because of the financial circumstance, then that will also influence the parenting time arrangement or share. However, generally speaking, what we do see, especially, the further apart the parents are is we have a school year parent, meaning they’ll have the child primarily during the school year. And then we’ll offset that with some of the time in the summer or maybe longer breaks to the other parents. So they do get as much time as possible with their child.

Jaime – 00:10:00:

Yeah, I think it’s really important for clients to understand what these types of schedules look like before they make the decision that they want to move. I mean, you know, sending your child to the other parent’s house for the entire summer and every holiday break and spring break and Christmas break and all of the things may not really be what you had in mind when you decided that you wanted to relocate. And, you know, that’s really tough on the kid too, right? Because, the child has one set of friends at one parent’s house during the school year and then they’re uprooted and they go to the other parent’s house for, let’s say, the entire summer and they make this whole new set of friends. But none of those friends are going to be in school with the child the next year. And I think that can be really tough on the kid.

Theresa – 00:10:47:

It definitely can. And some children respond differently to these types of situations than others. I would say if a child is younger, generally they need a little bit more structure. Whereas if a child gets older. Maybe it’s not as uncommon for the child to spend the full summer in a foreign location just because they like to get away and they’re in high school trying to experience different cities. But these are all great factors to bring up because I think there comes the presumption that, oh, well, my child should just be with me. They have been with me, so they should stay with me. When really, and I get it, I do. You know, you as a parent are very important to your child’s life, but you’re not the only factor in your child’s life. And we’re trying to figure out and strategize how can we make sure we’re doing what’s best for this child that is before us.

Jaime – 00:11:40:

Well, and I think it’s important too that you brought up travel costs because that is a very real thing that parents need to consider. And in fact, can be a consideration for child support and can be, you know, put on the child support guidelines as an expense. So it could potentially change what you might be entitled to in child support or you may potentially be owing child support depending upon, you know, how that all plays out. I’ve even seen some relocation cases where the court has allowed the relocation and said, that’s fine, you can relocate, you know, but you’re going to be the one who bears the brunt of all of the travel expense because you’re the one that wanted to move.

Theresa – 00:12:19:

Yeah, that’s a huge factor. And maybe it’s not even permitted to be included in the child support calculation because of that factor. And it’s my understanding travel costs are only getting more and more expensive, especially after the pandemic. And I want to stress here that this doesn’t mean that relocation is impossible, but it could be a can we table this concept maybe down the road, maybe when the children are a little older. Or I would say even more importantly, maybe have a discussion with the other parent before you even decide to accept that job or buy a house in that new location.

Jaime – 00:12:58:

Yeah, that’s very true. I mean, I think it depends a lot on the reasons for the move and whether they’re going to truly be beneficial for the child or not. I mean, I think about a case where maybe one parent does not really have a support network in state. You know, maybe they relocated here after they got married with their spouse. And once they get separated, they really don’t have anyone to help them with the children. And maybe they are the primary caretaker and maybe they don’t have a very high income and they really do need all the help they can get from family to help with the kids. If they are then moving back to a home state where, you know, grandparents and aunts and uncles and cousins are, and, you know, it’s a big family that the child is going to get to be a part of, that could be one compelling factor a court might consider. What do you think?

Theresa – 00:13:50:

I think that is a very important factor. I think the ability to have a support system in place for a child is important, regardless of where the child is living. I caution my clients who want to move from moving right away and just citing family as the cause. And I say that because, family is not the only form of support, right? So we definitely have those situations where grandparents are all say in, and I’m just choosing a random state here, but all in Michigan. And, you know, uncles and aunts are also all in Michigan. The problem rises though, when, you know, the parent who’s staying in North Carolina can say, okay, well, yes, you know, the moving parents family is in Michigan, but my whole entire family is here in North Carolina, or maybe they are just across the border in South Carolina, or there’s a proven track record that although one of the other, one of the North Carolina parents, parents or family members from New York flies down every other weekend. And that’s been happening the entirety of the relationship. And those extended family members, or maybe friends or other support network persons are already demonstrating that they’re there for the child. And simply because grandparents on parent, the moving parents side are willing to step up. That doesn’t mean they should be taken away. The child should be taken away from the support system. They already are accustomed to or grew up in.

Jaime – 00:15:27:

Oh, yeah, absolutely. I mean, I think it really does boil down to a totality of the circumstances. And when we look at all of the different factors, overall, is this move going to be better for the child or not? So shifting gears a little bit, if you are the parent that wants to move, what do you think that parent can do to improve their chances that the children will be allowed to move with them? And I say it that way because as you know, the court can’t prevent either parent from moving, but the court can definitely say, well, that’s fine, mom or dad, you can move wherever you would like, but I’m going to change custody and the kids are going to stay here with the other parent.

Theresa – 00:16:08:

Yeah, and that right there is a huge realization that I think all the listeners of this episode should hope to understand because it really is a situation where, you have competing interests, if you will, right? Because one parent does have whatever reason it is to be moving versus the parent who’s staying, who may honestly be surprised that this situation is presenting themselves. Because maybe when, you know, things were amicable, marriage was working, everyone agreed, okay, we’re going to move to North Carolina. We’re going to stay in North Carolina, North Carolina. I mean, you and I live here, so we’re fans of the state, right? There’s so many-

Jaime – 00:16:49:

It’s also bad.

Theresa – 00:16:50:

Yeah. There’s so many opportunities here in North Carolina to raise a healthy family. But on the flip side, to better your chances of moving away from this state or the city you may be living in and bringing your child with you, I would say that the very first discussion, the very first way to increase your chances is that serious talk with the other parent. Because part of the reason you’re leaving or moving could be because you’re not getting the support here with the other parent. Could be because, yeah, all of the primary custodian support system is out of state. And guess what, other parent? You’re not providing enough support for this child. This is why I’m even seeking of leaving or moving. And does that mean maybe they will recognize and reflect and realize, okay, no, you have a good point there. I will support your decision to move, but I do want certain parenting time. And if we have an agreement, even outside of relocation cases, if we have an agreement on a custody schedule or a parenting arrangement, that’s always a much better situation because parents are more likely to follow it. Children tend to be a lot more at ease with the schedule, the new routine, if you will. On the flip side, if you’re trying to create a better case, say in court, then it could be, all right, not only with your family law attorney, of course, not only creating all the good reasons, substantiated reasons for moving, such as providing a better financial circumstance, because maybe the circumstance here in North Carolina means that you’re jumping from job to job and don’t have a stable income situation, better financial security for you and the child. Yes, that’s a huge factor. Support system, like we’ve noted before, a huge factor. Maybe even a better schooling situation. Maybe the child has a unique need that they will need to have a certain, say, private school or a different form of therapy that’s only available in the location that you’re moving to. These factors that are focused on bettering the child’s arrangement will improve your chances in court. On the flip side, we do have to compare them to the current circumstance and the circumstance of what would be the arrangement if the child stayed in, say, North Carolina or the current city with the other parent. And if the other parent can provide stability, like financial security, a support system, provide for the educational and health care needs of that child, then that’s working against your case. But a judge will consider that.

Jaime – 00:19:36:

Yeah, absolutely. And I also think that it can be helpful if depending upon where you’re moving, you are able to approximate the amount of time that the other parent currently has with the child. I think it’s a much tougher case when folks share 50-50 and the child has a really good relationship with both parents for one of the parents to be able to move. I think that’s a much tougher case. But if one parent does have primary custody and you can approximate the time, it doesn’t mean you win, right? It doesn’t mean you necessarily get to relocate, but I do think it can be another helpful factor in your favor.

Theresa – 00:20:15:

Yeah, I do think at times some of our clients may get caught up on the specific schedule. So, you know, oh, I have every other week, so I need every other week. Or I have four overnights a month, so I need four overnights a month. Not realizing, oh, well, if you don’t split the summers and instead you get the full summer, you’re still getting a close to equivalent amount as, say, the arrangement that existed when both parents were living closer together.

Jaime – 00:20:42:

I don’t know about you, but I think relocation cases are some of the toughest cases that I deal with. I find that they are the least likely to settle of the custody cases just because the parents want, in most of these cases, diametrically opposed things. One parent wants the child to stay. The other parent wants the child to be able to move to New York, California, Hawaii, you name it. And it’s just really tough to get those resolved. What do you think?

Theresa – 00:21:12:

I agree. I do. I think that… When parents broach the topic or conversation, they tend to focus very much of what they see as what’s best for the child. And they may not always be able to honestly see the same question from, you know, a sky view or a third party view looking in on the situation. And most certainly they never see it from the other party’s perspective, right?

Jaime – 00:21:41:

Sure.

Theresa – 00:21:42:

So if we have this dichotomy of perspectives of what is best for the child. Combined with this desire to move, it’s very hard for parties to come to the table, negotiate, and reach an amicable resolution. I will say, I think I’ve seen it. I’ve seen it done. I shouldn’t say I think. I’ve definitely seen it done. And I think it works more so in negotiations if everyone is able to focus on the child, not on either party’s interests, like individual interests. On the flip side, I think if you take it to a judge, it is an extremely hard case to prevail in. I have seen time and time again, and I would say more so in the counties that are less busy, honestly. So I have not seen it as much in Mecklenburg County, but I have seen it in other counties where they just believe there’s a stable environment in a small community, safe community environment for the child. And, they’ll, for the most part, deny all relocations or most of them just because there are so many benefits to where the child has been living up to this point. I like to say judges are a little possessive, and they like to keep their children where they can see them. And I get it. It’s for the safety of the child because there are so many unknowns out there if a child is uprooted and moved completely.

Jaime – 00:23:12:

Yeah, and that’s one factor we haven’t really touched on yet. I just thought about is that what is the likelihood that the moving parent is going to maintain the child’s relationship with the parent who remains in North Carolina? I think that’s a really big factor for the court for the reason that you just stated that, you know, once the child has moved away, it’s more difficult to, you know, keep an eye on things, so to speak.

Theresa – 00:23:37:

Yeah, that’s a great point. And so if up to this point, there’s been a lot of mudslinging, negative commentary shared, use of the child as an intermediary, and a lot of conflict. Yeah, I don’t know if a judge is going to then trust that the moving parent is suddenly going to create an environment where the child feels comfortable calling the other parent every day. Or FaceTiming or using Skype or any other virtual meeting technology out there. And I think these situations where parents are going to be further apart, there almost needs to not only be the encouragement by both parents to have a healthy relationship with the other parent, but there may need to be active efforts. Like, for example, bringing the child to the airport to get on the plane or the other parent, especially if the child is younger, or the other parent flying to and from. So if the parent moved to California, yeah, they’re going to have to fly to North Carolina, pick up the kid from the airport, right outside. Maybe the other parent is willing to drive the kid to the airport and then fly all the way back. So let alone the cost perspective that we noted on earlier, but the time and willingness to do all of that to make sure that that child maintains a relationship with both parents. Yeah, if a judge doesn’t believe that’s going to happen, then that’s, you know, a point in the judge’s decision against granting the relocation.

Jaime – 00:25:07:

So we’ve talked about some tips for folks that want to relocate. What if you’re the parent who is opposing the relocation? What are some things that you can do to improve your chances that the court will not allow the children to move?

Theresa – 00:25:22:

Honestly, I think it’s a lot of the same factors is really focusing in on what is best for the child. And to the benefit of the parent who’s not moving, they have a lot of information already, right? Okay, well, if the child stays with me, I’ll make sure that the child remains in the same school. If the child stays with me, I will make sure the child still goes to the same pediatrician or dentist. If the child stays with me, I will set up a routine of phone calls to make sure that child is contacting the parent that’s moving away. And I think that’s really independent of whatever custody arrangement the parties have been following up to that point. Because I have seen even parents that had every other weekend arrangements with the children, if they stayed and they can provide that evidence to the court, the judge will then say, okay, well, they first off been exercising all of their weekend time. So make sure you exercise your parenting time. If you want more, there’s a very important. And then on the flip side. A judge will trust that an increase to the parenting time because that parent is staying in North Carolina could actually benefit that child as well.

Jaime – 00:26:39:

How do you counsel clients who come to you and say, I really want to relocate. I got a job in California. And then they let you know that not only did they get the job in California, they have accepted it and they’ve actually already moved there. How do you deal with a situation like that?

Theresa – 00:26:58:

Well, I take a deep breath first, especially because I may feel a little betrayal if I’ve been their family law attorney for years up to this point. Because I’m like, this is, you know, that stuff that you should always tell your attorney. Yeah. Moving is a big one when you have minor children to tell your family law attorney about this information. Honestly, if all of those steps have already taken place, I feel like it’s less about being proactive and fixing whatever may be broken now. Because if, say, you know, my client has already moved… And we have a week-on-week-off custody schedule, then I know that’s not working. Unless somehow we’re in the summer and everyone’s able to afford it until school starts. I will have that heart to heart with my client and say, look, I don’t know if I can maintain the argument that we can still do anything similar to an equal share of parenting time. Because the reality is, is if this child needs to go to school, then wherever the child is going to school, that parent is going to likely have more parenting time than the other parent. We will try to equate it as much as possible if we started out at a 50-50 arrangement. Unfortunately, I mean, if you count the days, children tend to be in school more so than out of school when you’re looking at the calendar. And I also try to guide my client through the realistic expectations once you have moved. So let’s say in this fact pattern that they’ve already accepted the job, they’ve moved out there, they’re doing intensive training. Okay, well, maybe you don’t want the child around that you have to care for primarily on your own when the child is in this new location. Maybe we negotiate with the opposing side and say, hey, I’ll be in intense training, but can I get the upcoming spring break? Or can I get more time this summer? And hopefully that will turn into some type of parenting arrangement share of time. That both parties are more comfortable with as we move forward. The only thing is, at the end of the day is, if you’ve blindsided your attorney, then you’ve likely blindsided the other parent.

Jaime – 00:29:21:

Right.

Theresa – 00:29:22:

And that doesn’t create the best environment for negotiations.

Jaime – 00:29:26:

Well, and two, I think it’s really important for folks to remember, if you have a custody order, you still have to follow your custody order. And you can’t just move if you’re not able to still continue doing the schedule that’s in the order, or the other parent could ask the court to hold you in contempt. So be very, very careful. And like Theresa said, if you’re contemplating a move, I think the first step is to talk to your lawyer first before you actually make that move.

Theresa – 00:29:57:

Agreed. 110%. Talk to your family law attorney first and let’s strategize. Let’s create a game plan moving forward. And I get it. You may have found your dream job and they’ve put a time limit on when you can respond. It’s just, if you accept that job. Too early, you may be prioritizing that job over your child.

Jaime – 00:30:19:

Absolutely. And if you’re the parent that wants to relocate, you really need to do all of your homework first. You need to look into all of the things that your child is going to need from a school to childcare, to extracurricular activities, to doctors, to dentists, to do they require some sort of specialized therapy? And is the new location going to be better or worse for the child in that regard? Because those are going to be some really good talking points for you first with the other parent, and then some really good evidence for you, hopefully, if your case ends up proceeding to court.

Theresa – 00:30:54:

Yeah, that’s a great point. And now that you also know child support, we did reference it a little bit earlier with the travel expenses, but child support does not necessarily follow the child. And so, you know, you may move, but then you would still have to return to the North Carolina courts, possibly, in order to get child support. That’s another thing to consider is that if there is still a high conflict custody and or child support matter that now transcends, you know, boundaries across the United States, you also have to factor in the reality of having litigation in North Carolina if this is the state you’re moving away from.

Jaime – 00:31:39:

Yeah, that is a really great point that folks need to consider. Theresa, if you could only give one piece of advice to someone going through a relocation case or considering a relocation case, what would it be?

Theresa – 00:31:52:

I feel like we’ve touched on it so much here, but I do truly believe it is talk to your family law attorney first. If you don’t have one, find one. Get that information that is out there and really think through all the options on the table. Do the pros and cons. What is the pro and the con for just staying in North Carolina? What is the pro and the con for moving to this other city or moving to this other state? And maybe also do a pro-con list for your child. Because if you actually write it out and you see it, maybe you’ll be enlightened at the outcome. And maybe it is, you move to the other state, you get less parenting time. And then hopefully in a few years, especially as the child gets older, you increase more time. And I’ll just leave it with one last note. I hear this often from our judges here in Mecklenburg County, that it’s not always about the amount of time that you have with your child. Rather, it’s about the quality of time and the memories that you share with your child that is most important.

Jaime – 00:33:00:

That is a very, very great point. Theresa, thank you so much for joining us today.

Theresa – 00:33:05:

Thank you for having me.

Jaime – 00:33:12:

Thank you for listening. If you like this episode, be sure to follow the show wherever you get your podcasts so you don’t miss the next one. While the information presented is intended to provide you with general information to navigate divorce without destruction, this podcast is not legal advice. This information is specific to the law in North Carolina. If you have any questions before taking action, consult an attorney who is licensed in your state. If you are in need of assistance in North Carolina, you can contact us at Gailor Hunt by visiting divorceistough.com. I’m Jaime Davis, and I’ll talk with you next time on A Year and a Day.