Relocation cases involving joint custody are special and require a determination of primary custody before the parent may be allowed to move with the child. A parent with joint legal and physical custody may not be granted permission to move with the parties’ child, unless the district court first determines the best interests of the child require a change in primary custody to that parent.
A parent with joint custody who wishes to relocate with the child must make two motions: one for a change of custody, governed by N.D.C.C. § 14-09-06.2, and one to relocate with the child, governed by N.D.C.C. § 14-09-07. The change of custody motion requires the party wishing to relocate to show there has been a significant change in circumstances and the best interests of the child would be served by the child’s moving with the relocating parent.
For motions to modify joint custody under N.D.C.C. § 14-09-06.6(6), the court must find a material change in circumstances of the child or the parties, which may include a parent’s relocation, and that modification is necessary to serve the best interests of the child.
The North Dakota Supreme Court has described what is necessary for a parent who has primary residential responsibility to prove to obtain the Court’s consent if the other parent will not agree.
The Stout-Hawkinson factors are designed to address the best interests of the child for cases in which a primary custodian has already been designated and the custodial parent wishes to move.
1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life;
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent;
3. The integrity of the noncustodial parent’s motives for opposing the move;
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.