Relocation in Child Custody Modification

Relocation in Child Custody Modifications:



If a planned move necessitates a change in the custody schedule, that can be a substantial change in circumstances warranting a court to modify a previous custody order. As one can imagine, moves are carefully scrutinized by a trial judge to determine if the move is in the best interest of the children or would rather be a negative impact on the children. On February 4, 2026, the N.C. Court of Appeals overruled a trial court’s modification of custody allowing Mother to relocate to Israel with the minor child and remanded the case to the trial court for further findings and conclusions of law. Cohen v. Hefetz, 2026 N.C. App. LEXIS 89 (this decision is not final until expiration of the twenty-one-day rehearing period.) 

In this case, the parents were never married, and Mother had always had primary custody with Father having visitation. In the beginning of “Sam’s” (a pseudonym) life, Father’s contact was minimal. Father considered relinquishing his parental rights, but ultimately, he began to spend more time with Sam, though he agreed Mother could visit her family in Israel for weeks at a time. Father’s extended family also lived in Israel. The custody order being modified gave Father every other weekend visitation until Monday mornings and extra time in the summer. When Mother filed a motion to modify child custody and take the child to Israel to live, Father opposed her motion. Ultimately, the trial court agreed with Mother, modified custody, and permitted relocation. 

Father appealed the order arguing the court’s findings of fact did not support its conclusion that primary custody should be granted to Mother and that Mother should be allowed to relocate to Israel with the child. The Court of Appeals agreed, noting that many of the trial court’s findings were “mere recitations” of testimony and did not resolve the disputed issues and that the trial court had not explained why awarding primary custody to Mother was in the child’s best interest. In this case, the Court of Appeals noted, the primary disputes between the parties were the safety of the child, relocation to Israel rather than the U.S., the safety of the neighborhood Mother would live in, and whether Sam’s relationship with Father and his family would suffer. Though the Court listed 101 findings of fact, many of those “findings” were simply things like, “[Mother’s brother] indicated that he has no concerns about his or his family’s safety in Israel,” while “[Father’s brother] indicated that i[t] i[s] not safe to raise children in Israel right now, but his own children are in Israel. . . .” Id. at *12-13. Rather than the trial court stating it found one witness more credible or finding that it was currently safe enough to raise children in Israel, the trial court simply recited testimony and did not resolve the issue of the child’s safety in Israel. However, the Court of Appeals also concluded that there was sufficient evidence in the record for the trial court to resolve the dispute and make the appropriate Findings of Fact, so the Court of Appeals sent the case back to the trial court to make the appropriate findings and conclusions of law to support its order. 

The Court of Appeals determined the trial court’s conclusions of law were also deficient.

 Before awarding custody of a child to a particular party, the trial court must conclude as a matter of law that the award of custody to that particular party 'will best promote the interest and welfare of the child.'" Steele v. Steele, 36 N.C. App. 601, 604, 244 S.E.2d 466, 468 (1978) (quoting N.C. Gen. Stat. § 50-13.2(a)). Here, the trial court failed to conclude a grant of primary physical custody to Mother with her relocation to Israel was in the "best interest" of the minor child.

Id. at *9-10. While the Court of Appeals concluded no magic words are necessary, this order did not explain why awarding primary custody to Mother to move to Israel were in the best interests of the child. Id.

Father also argued that the trial court’s order should be set aside because it did not include a recitation of every Ramirez-Barker factor. The Court of Appeals declined to go that far, but did note, those factors will be appropriate to consider in almost all relocation cases. Those factors 

include but are not limited to: the advantages of the relocation in terms of its capacity to improve the life of the child; the motives of the custodial parent in seeking the move; the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina; the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

Ramirez-Barker v. Barker, 107 N.C. App. 71, 80, 418 S.E.2d 675, 680 (1992). (overruled on other grounds). 

So, what does this mean for parents wanting to relocate or parents opposing relocation? For one thing, the Court of Appeals sent the case back to the trial court for further findings of fact and conclusions of law. That does not necessarily mean Father wins and Mother can’t move with the child. It means the trial court has to add enough findings of fact and conclusions of law to support whatever order it makes. The trial court may simply resolve disputes, make more findings of fact, and conclude that it is in the best interests of the child to live with Mother in Israel. Sometimes a win at the Court of Appeals just results in a corrected order with the same outcome. That means legal fees and costs for the trial and more for the appeal, and even if you technically win, it may not be the outcome you hoped for. 

For parents who litigate relocation cases, future relational costs can be high. Under the Ramirez-Barker factors, what trial courts are tasked with doing in any relocation case is determining the motives of the parents supporting and opposing relocation, determining whether the custodial parent will obey North Carolina custody orders when they live beyond the jurisdiction of North Carolina, determining whether it is in the best interests of the child to grant primary custody to one parent, and determining whether visitation can preserve the child’s relationship with the noncustodial parent. A parent who wants to relocate will want to demonstrate that the purpose of relocation is not to reduce the child’s time with the other parent, the purpose of the move is to benefit the child in some way such as more access to extended family, more support for that parent, or a higher income which will give the child greater benefits. A parent who opposes relocation will want to show to the court the other parent has bad motives in deciding to move such as a desire to reduce that parent’s time with the child and interfere with the parent-child relationship. The parent who opposes relocation will also want to demonstrate the move would not be beneficial to the child and demonstrate the difficulty of arranging a realistic visitation schedule to keep the relationship with non-custodial parent strong. For the parent who opposes relocation, any evidence of the custodial parent’s violations of the present child custody order or interference with visitation will be highlighted during the trial. 

One can understand, then, that a court hearing on relocation can be highly contentious, and further damage a co-parenting relationship, but it may be necessary. Parents who don’t live together usually do so for good reasons. If they could discuss things calmly and hear, understand, and validate the other’s point of view, they might still be together. The parents talking face to face about an issue where one parent is sure to “lose” is a recipe for disaster . . . unless there could be another way. 

There are other options to consider when one parent is considering relocation: mediation and the collaborative process. In each of these processes, it’s not just the parents talking which can devolve into nothing more than a heated argument. Others are involved, which can hopefully bring more light than heat. If these options fail, a trial on relocation is still a possibility. 

In mediation, the parents can appear with or without attorneys, and have a mediator assist in exploring options and the real issues behind the move. Parties can take breaks. The mediator can go back and forth between the parties, giving each party the chance to fully express their emotions and wishes and giving them a full opportunity to be heard by someone, the mediator. In court hearings, parties are questioned. Their answers should conform to the question. Parties aren’t given the opportunity to ramble about things that may be important to them, but not directly relevant to the case. A party can go through an entire court hearing, and still come out on the other side, feeling they weren’t really heard and understood. Evidence they thought was important may have been excluded. In mediation, if both parties are committed to the process, they can both be heard and validated, and then have their concerns raised by a trained mediator with the other party. A skilled mediator can move the parties past black and white thinking to solution seeking and meeting at least some of each parent’s needs. 

In the collaborative process, both parties must have collaboratively trained attorneys, and they sign a participation agreement, agreeing not to go to court during the collaborative process. They agree that they will voluntarily reveal all material and relevant information and any experts they hire will be neutral. So, for example, they may hire a collaboratively trained child specialist (therapist or psychologist) to interview the parties and the child and make recommendations as to what solutions would benefit the child. And both parents reveal all the information about possible schools the child would attend, activities available, parents’ work schedules, etc. Then, in one or more meetings with both attorneys, the parties, and possibly that child specialist, the parties meet to try to resolve their issues. Each party will have legal advice on what a judge might do in their situation, but the focus is on finding a mutually acceptable lasting solution, not impugning the motives of the other parent. If the parties can work collaboratively with the assistance of attorneys, that may lead to a more harmonious relationship going forward. If the parties cannot agree, they can end the process and go to court, but any experts they hired and their attorneys will be disqualified from appearing because everything they were doing was for settlement purposes, not litigation. And, of course, that’s expensive, so both parties have real motivation to reach a solution they can both live with if possible. 

In both mediation and the collaborative process, the issues behind a potential move are explored, but not with a focus on blame. Is the real reason for the move, that one parent needs more extended family support to assist with childcare and home upkeep? If that’s the real motivation, could the other parent offer more support in childcare or transportation to activities? If the move does happen, could the moving parent increase the other parent’s visitation in the new location? For example, could the moving parent use their airline points to allow the other parent to visit for extended weekend visits and Spring Breaks, in addition to sending the child for summer visitation? In mediation and the collaborative law process, the emphasis is usually on problem-solving, not highlighting the problems for the purpose of winning. Not every case is right for the collaborative process and sometimes a trial is the best option, but the collaborative process is an underused method of resolving disputes. 

This is obviously not legal advice in your case as every relocation case is different. For legal advice, you should consult your own attorney.