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Ask An Attorney

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My ex-wife and I divorced nine years ago. We have three children together, and at the time of the divorce we agreed she would have primary residential responsibility. For the past two years my oldest child has been living with me full-time and I've also had the youngest two children more often than what the original order allows for-although nothing has been formally changed through the court. The issue is she now wants to move to Nevada with all three of our children and her fiancée. She has requested that the court allow her to relocate with the children because she has a business opportunity there. I believe it best for the children to remain in North Dakota with me and I'm not sure what I need to do next.

"There are two distinct issues here. First, it sounds like the mother has already filed a motion with the court requesting permission to relocate, so a response opposing her motion will need to be filed within 14 days. Second, a simultaneous request for modification of residential responsibility should also be filed."

So the mom is not able to relocate to another state without permission from the court?

"Most likely. Sometimes the parties will agree to allow relocation to take place in certain situations, such as if the parent who has primary residential responsibility has a job where he or she is likely to have to relocate. It's possible the parties would agree in advance that relocation could take place and that the parties would work together to modify parenting time. However, since the mom is requesting permission from the court to relocate, we can assume the parties did not agree to such a provision."

What would it take for the court to allow her to relocate?

"First of all the burden is on the mom to show that the move would be in the children's best interests. Further, they have set forth 4 factors to do so, which are known as the Stout-Hawkinson factors."

Can you explain those factors?

"The court will first look at if the move would improve the quality of life of the children and custodial parent. Here the dad indicated that the mom's reason for requesting the move is because she has a business opportunity. It's possible, if that is true, that it could improve their quality of life. However, the dad also indicated that mom has a fiancée, and I would question whether he has something to do with why the move is being requested."

That does seem like a real possibility, especially considering what he said about the current situation. What about the last three factors?

"The second factor addresses the custodial parent's integrity in requesting the move-in other words, whether the mom is requesting the move in order to frustrate dad's parenting time. I do not believe that will be relevant considering the mom seems to be okay with him having more parenting time than what the original order allows."

And the last two factors?

"The third factor addresses the motives of the non-custodial parent, the dad in this case, in opposing the motion. I don't believe there would be an issue in regard to the third factor since the dad does have legitimate concerns considering what has actually been occurring with parenting time. Finally, the court will look at the potential negative impact, if the move is allowed, in regard to the dad's relationship with the children, and the likelihood the parents will comply with an alternate parenting time schedule."

You also mentioned earlier that the dad will want to request a modification of residential responsibility, how does that factor into this?

"Generally when one parent requests to relocate, and the other parent simultaneously requests a modification of residential responsibility, the court will hear argument on both motions at the same time. In this situation, I believe that the modification issue will be the issue at the forefront solely because an informal change of residential responsibility has essentially already occurred in regard to the oldest child. Also, the dad indicated he has had more time with the younger two children than what was originally ordered, so if he's had them over 50% of the time, that will be significant as well."

Are there any other considerations in regard to a modification of residential responsibility?

"Yes. The court will look to see if a modification would be in the best interests of the children. There are 13 factors the court will look at, including the ability for each parent to provide for the children and the stability of each parent's home environment."

It seems like both of these decisions come down to what is best for the children.

"Ultimately they do since the court will look to what is in the best interests of the children rather than to what the parents want."

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