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Relocation With Children to Another State After Separation and Divorce

Tuel v. Tuel, 840 S.E.2d 917 (2020).

After separation and divorce, it is not unheard of for one spouse to move out of state. If the former couple had minor children together, then the question is which spouse is primarily going to have custody of the children? Improvement to quality of life is only one of the factors that must be taken into account when making the determination. If custody litigation arises, then the Court must review any factor that has bearing on the best interests of the children. These can be complicated cases (as can be seen below), and the parent seeking custody needs to demonstrate that relocating the children to another state best serves the development and growth of the children.

  • Facts: Plaintiff filed a claim for primary custody (among other claims related to a divorce) of her two minor children, born in 2014 and 2016. Upon separating, Plaintiff left the residence in North Carolina and relocated to Rushville, Indiana with the minor children and stayed at Plaintiff’s parents’ home. At the hearing for custody, the trial court saw evidence that Plaintiff had been estranged from her parents from 2014 to 2017. Plaintiff had ceased contact with them because they were abusive towards her, and she was afraid that her parents’ religious beliefs would conflict with how she wanted to raise the minor children. Plaintiff’s old journals, social media, and therapy records indicated she suffered from mental health issues related to her upbringing. Plaintiff offered evidence that her support system—her family—in Indiana would assist in raising the children. The trial court determined, after hearing the evidence, that the best interests of the children would be served by granting primary custody to Plaintiff, in Indiana. Defendant appealed.


  • Issue: Was the trial court in error in granting custody to Plaintiff based on the evidence?


  • Holding: Yes.


  • Rationale: A trial court is required to consider factors that relate to the best interests of the children, in situations where relocation is a possibility. Any relocation must be supported by findings that the capacity of improving the life of the children be increased. Additional considerations are motives of the parent seeking the relocation, future compliance with any custody/visitation order, objections to the relocation, and the likelihood that a custody schedule can be feasibly arranged that preserves the relationship between noncustodial parent and children. Only when the advantages outweigh the disadvantages may the court have discretion to permit a relocation. While the cardinal rule remains promoting the best interests of the children, these factors directly relate to that goal. The trial court order was vacated by the Court of Appeals because the trial court did not adequately analyze any particular factor; they did not consider a custody schedule if the children were to reside in Indiana; and they did not assess the integrity of the objections to relocation. The trial court based their order primarily on the support system of the Plaintiff; as stated by the Court, “This finding alone cannot carry the weight of the custody order.”


  • Lessons and Observations:


  1. The Court of Appeals then goes on in dicta to note that the trial court’s order is contradictory to the evidence. The children were born in 2014 and 2016, therefore could only have known Plaintiff’s parents for at most one year. The “long-standing” relationship with the extended family, as claimed by Plaintiff, is factually suspect and was not explained how it came to be. Moreover, the reasons for estrangement from her parents was due to Plaintiff’s experience growing up, with journals detailing physical and emotional abuse. The trial court did not include determinations as to the accuracy of those writings in their order. Similarly, the therapist’s accounts of Plaintiff also telling them about abuse in their sessions were not discussed in the order. Again, the trial court found that Plaintiff’s mental health issues stemmed from her marriage and her role as being the primary caretaker and would not impact her fitness as a parent, yet there was no explanation from the trial court as to how it might affect the children when granting primary custody (thereby making her a primary caretaker) to Plaintiff.
  2. If relocation with minor children is in your future as part of your separation and divorce, you need to provide every single fact as to why it benefits the children more to relocate than remain in this state. Often that is difficult when the children have grown up here. On the other side, fighting relocation requires that you show how remaining in North Carolina is wholly beneficial. A family law attorney experienced in custody matters is recommended.