Vol. 17, No. 9
Vol. 17, No. 9
A divorced parent with primary physical custody of the parties' child was recently permitted to relocate out of state by the North Dakota Supreme Court in Stout v. Stout, 1997 N.D. 61, 560 N.W.2d 903 (1997). Reviewing national trends on the issue, the court joined a growing number of states that generally allow such moves for a legitimate reason.
Upon their divorce, the mother in Stout was awarded primary physical custody of the parties' young son, while the father received visitation on alternate weekends, two evenings a week, alternate holidays, and six weeks during the summer. A few months after the divorce, the mother sought permission to move to Arkansas with the child. She had been unable to find a full-time job with benefits in North Dakota, but she had been offered such a position in Arkansas, her native state. She planned to live near her parents, her sister, and the father's parents. Neither party had any relatives in North Dakota.
The trial court denied the mother's request, believing that any improvement in the mother's economic circumstances would not outweigh the detriment to the father's visitation rights. The North Dakota Supreme Court reversed, explaining that the improvement in the mother's circumstances would benefit the child as well, and that these benefits should not be sacrificed to preserve the existing visitation arrangement. The court pointed out that adequate alternative visitation was possible. Although the father's weekly visitation would be eliminated, he could exercise visitation in larger blocks of time in the summer and over holidays during the school year. In reaching this conclusion, the court followed the approach of the New Jersey Superior Court in the leading case of D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (Ch. Div.), aff'd per curiam, 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976).
In a companion case decided on the same day, Sumra v. Sumra, 1997 N.D. 62, 561 N.W.2d 290 (1997), the North Dakota Supreme Court affirmed an order granting a divorcing wife sole custody of the parties' children and allowing her to return with them to her native country of Wales. Even though the relocation request was made in the context of an initial custody determination, the court applied the D'Onofrio analysis.
North Dakota thus joins a number of other states that have recently adopted a liberal approach on the issue of parental relocation. See In re Marriage of Burgess, 13 Cal. 4th 25, 51 Cal. Rptr. 2d 444 (1996); Russenberger v. Russenberger, 669 So. 2d 1055 (Fla. 1996); Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (1996); Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). (Nadine Roddy, Senior Attorney, Family Law)