Can I move out of State with my child?

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 any minor children. Moving out of state does not automatically equate to kidnapping. That being said, the decision to move can certainly backfire. The other parent could petition the Court for an Emergency Order directing the child back to North Carolina or possibly have your face on the news via an Amber Alert.

Moving out of State without express permission from the other party and Court is always a risk. The last thing you want is to move only to have a local Sheriff show up at your door with a Court Order to take your child back to North Carolina. 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 their motion for Emergency Custody.

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 I have full custody can I move out of State?

Unless your existing Court Order explicitly allows you to move out of State then it would likely be difficult to impossible to move without violating the visitation terms contained in most custody Orders. If the other parent has every other weekend how are you going to shuttle the child back and forth to stay in compliance with the Order?

​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 or a Motion to Modify Custody seeking permission to move with the child. Be aware the ultimate 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.

North Carolina custody relocation laws

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:

1. The advantages of relocation to improve the minor child’s quality of life.
2. The custodial parent’s motives in seeking to move.
3. The likelihood that the custodial parent will comply with visitation orders.
4. The integrity of the non-custodial parent in opposing the move. (good faith or spite to oppose move?)
5. The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the minor child’s relationship with the noncustodial parent.

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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.