Assuming there is no custody Order in place it is not technically illegal to move. By default legal parents whether they are married or unmarried share joint legal custody of the child. Moving out of state does not automatically equate to kidnapping. That being said, the decision to move can certainly backfire if the other parent petitions the Court for an Emergency Order directing the child back to North Carolina. The last thing you want is to move only to have a Sheriff show up at your door with a Court Order to take your child back to North Carolina without you. Not to mention the Judge may be angry and forever biased against you after your Ex has presented their version of the facts as to why you moved in an Emergency Motion.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted in 49/50 states (Massachusetts is pending) and vests exclusive and continuing jurisdiction to determine child custody in the “home state” of the child. If a child has resided in North Carolina with a parent for the prior 6 months then NC is the “home state” and has exclusive jurisdiction to determine custody. Otherwise one parent could move to Hawaii and file a Custody action in Hawaii, which would only encourage forum shopping.
If you are looking to move out of North Carolina the best approach assuming the other party will not consent to the move is to file a Complaint for Child Custody seeking permission to move with the child. Be aware the standard employed by the Court is the “best interest” of the child. Although this standard is the same statewide it is interpreted very differently by Judges in different counties. Some counties are very pro-mom and will let her move to Hawaii. Other counties favor joint custody and won’t allow one party to move a child away absent a compelling reason.
The seminal case on point in North Carolina is Ramirez-Barker v. Barker, 107 N.C. App 71. Mom filed a motion to modify an existing Order to allow her and the child to move to California. After hearing the evidence including testimony from both parents and a psychologist the judge decided moving to California was not in the “best interest” of the child and the motion was denied.The five factors the Court examined were:
Anytime one parent seeks to move out of state it is important to realize that will forever change the relationship the child has with both parents. Courts are forced to make a difficult decision based on the evidence before them. It is critical to know your Judge to frame your case as to why the move is or is not in the “best interest” of the child.