Moving out of state with a child - Monroe NC Lawyer

Can I move out of State with my child?

12/6/2014

Updated 11/21/2018

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.

Moving out of state if pregnant

The home state of the child is where the child has lived for the last 6 months. If the child is less than 6 months old then where the child has lived since birth is the home state. This gives the mother a lot of control when pregnant to decide to move to a new decide for jurisdiction purposes. At this time there is not much a father can do legally before a child is born to prevent the mother of his child from moving.

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:

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

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.

44 Comments

Sylvia Wells

11/21/2016 10:34:27 am

The "best interest of the child (ren) must include legal steps to insure the child's constitutional rights are addressed, especially their OWN opinion, including home environment, healthy nutrition, loving pets, ethics & outdoor activities, especially gadening, making Xmas cookies, seasonal crafts, everything that makes it HOME.

Jason Witt

2/19/2017 09:16:09 pm

The "best interest" test really does include anything and everything a Judge wants it to include. That downside of having such an open invitation to "interpret" the law is divergent opinions based on the ideals and biases of individual Judges.

Kristy ice

1/6/2018 02:14:33 am

I am a mother of a young child under 3 and I was wondering if I could move out of state with my child because me and the father are unmarried and he is trying to have my daughter around a convicted felon with prior history of violence towards people in my family and has been convicted of drug charges and is currently incarsirated because of it and my new partner has a safe environment where my child will have Anything she needs and will be safe but it's in a different state and I was wondering if I could just take her with me and fight for custody in her home state or would that only hurt me I just want to make sure my child's best interest is in mind .... Please help

Jason Witt

1/6/2018 10:10:16 am

The father is currently in jail- any idea for how long? Is there already a court order in place on custody? You should definitely speak with a local attorney before any move.

Alicia

4/15/2018 06:23:09 pm

My husband has a child from a previous relationship in which they were never married but he is on the BC. He had primary custody of his daughter for 2 years while mom visited & had seldom contact. When we got married and he decided he was going to move to California with me she refused to let him take her and took custody back. They have no court documentation only an agreement on paper that for the FY 18 school year she would stay with mom in NC & that neither parent can leave the state with child without the others permission. Now she wants to move to NY and refuses to discuss other options of custody. Does he have a right to say she can’t move?

Jason Witt

4/15/2018 07:28:51 pm

The "home state" is where the child has lived for the last 6 months. Why does he care if the child lives in NC or NY if he lives on the other side of the country anyway? If he wants to stop the move he needs to file an action in North Carolina ASAP.

Johnny

5/12/2018 01:17:28 pm

My ex gf is pregnant with my child. We ended up breaking up. We both currently live in NC. I am concerned she may try to move far away while she is pregnant, so I can’t see the kid and leave me out of the picture. Since the child was conceived in NC and her intent is to deny me access to my child when it’s born, can I have court force her to stay in NC?

Jason Witt

5/12/2018 04:10:58 pm

I am not aware of any options to file an action for custody before a child is born. The woman essentially has all the power and can move anywhere she wants.

Amanda

5/13/2018 08:18:43 pm

My sister has a 6 month old son. She currently lives with her deadbeat boyfriend in NC. Would it be legal for her to move into my house in NY? My husband and I are the only family she has. She's petrified he's going to take the baby away from her.

Jason Witt

5/13/2018 08:59:04 pm

It may be legal if no court order in place, but it would give him grounds to apply for an emergency custody order based on her fleeing the jurisdiction. At this point she needs to speak with a local attorney before moving.

Cecelia

6/19/2018 06:46:20 pm

I have full custody of my daughter in NC with no set visitation rights for her father. This was issued when her dad was in jail. After getting out of jail her dad moved to SC. A bit later my job relocated me down to SC as well. I’m wondering if my NC custody agreement still stands in SC considering we’re both residing in the same, neighboring state?

Jason Witt

6/19/2018 07:06:37 pm

If you currently reside in South Carolina you should speak with a SC attorney about the pros and cons of registering a NC order in that state for either enforcement or modification.

Dean

7/26/2018 10:59:29 pm

I have 50/50 with Ex which was just currently agreed upon, but for last 8 Year’s I was primary. My Ex has became sick so I was trying to do the right thing but I have came into financial hardship but have a great opportunity but I’d have to move to SC. How would this impact my situation?

Jason Witt

7/27/2018 09:34:49 am

It really depends. Can the child stay in the same school if you move? How far apart will you be from the other parent- can 50/50 still work? Does the order say anything about either party moving? You should consult with a local attorney before making any move.

Wendy

7/30/2018 02:26:28 am

My children's father left to SC almost 2 years ago. He's seen our 2 children 4x in 2 years, only once for 3 hours in the past year. He took it upon himself to pay 1/2 child support when he moved. My current husband recently retired from the Army and would like to move back to his home of record in WV. His father is not well. My children's father said he will not agree to us/our kids moving out of state. How is this possible when he ready moved out of state and barely sees our children? Our custody order does not say that they have to reside in NC. Would I be breaking an order if we moved to WV? Could I lose custody?

Jason Witt

7/30/2018 07:48:14 am

Does the current court order provide the father with visitation? How are you going to stay in compliance with that visitation order if you move to another state? You need to consult a local attorney and likely file a motion to modify custody before you change the home state of the child.

Tracey

8/8/2018 12:07:13 am

So my ex girlfriend is taking me for visitation in South Carolina. I now live with my daughter in North Carolina. Been here for 2 yrs. Which court has jurisidiction over the case. How does she have grounds for visitation?

Jason Witt

8/8/2018 08:35:09 am

The home state of the child is where the child has lived for the prior 6 months assuming no court order is already in place. Does she have an attorney? Is this ex-girlfriend the mother of the child?Did she allege the child lives in South Carolina? She may have just filed in SC because she just assumes she can wherever she wants. At this point you need to consult with a SC attorney about filing a motion to dismiss.

Tiffany

8/14/2018 02:51:37 pm

Hello,

I'm getting married in October. My fiance had to move to GA for a better opportunity and stable job. I have physical custody of my daughter who is 6 and my ex husband has visitation. We are on hold to relocate because he doesn't agree with the move and has no valid reason. He says that the move will interfere with his time. Im willing to compromise by giving him 3 weekends instead of 2 and adding additional weeks in the Summer im addition to the time he already has. We live in NC so the drive will be 3 hours. Im willing to meet halfway. He is suing for full custody will the judge allow this? I wanted to move before school started but now having to wait because i want to make sure im doing everything right. The move will benefit our daughter in so many positive ways.

Jason Witt

8/14/2018 04:19:28 pm

A judge will decide whether a move in the best interest of your child. You really need to hire a local attorney and rely on their advice as many judges will not grant your request if the other parent is an active parent the move will impact their ability to continue being active in the child's life. In these type cases who your judge is seems to matter more than the law.

Ashley

8/26/2018 09:17:57 pm

If our custody agreement has a mile radius that we cannot live away from each other and we have 50/50 am I allowed to move to SC if it’s within that mile radius (currently live in NC)

Jason Witt

8/27/2018 09:59:14 am

It may not be a violation of your court order, but might be considered a substantial change of circumstances to modify your current order. You should always talk to a lawyer before moving out of county or state.

8/29/2018 11:38:34 pm

I moved out of state with my son- due to a negative relationship. His father, and I never married, and no court order. With what I did- was it illegal, and can I get in trouble? I’m not denying him his rights. I just need time to recollect, and get situated before I bring my child around the negativity.

Jason Witt

8/30/2018 11:28:56 am

Moving out of state with your child may not be illegal, but certainly could provide grounds for him to ask for an emergency ex-parte custody order. You should speak with a local family law attorney ASAP.

Angelique

9/3/2018 04:23:33 pm

I have 2 kids 9 and 11. We are unmarried and have been separated since December, I recently started seeing someone and my daughter dosnt like it. She is wanting to go back to FL with her dad, and I dont agree. Is it legal for him to take the kids without my authorization?

Jason Witt

9/3/2018 05:31:52 pm

Have you currently been living in NC with the children for at least 6 months? If there is no court order on custody then it may not be illegal for him to take the children so you should certainly speak with a local attorney.

Bee

10/16/2018 07:13:57 pm

I want to move back home to another state with my 6 month old. There is no court order in place as far as custody and his father lives an hour away from where we are now. Can I move and then file for full custody or do I have to do that first? I'm just afraid that if I file for custody here then he'll file for 50/50 and then I can't move. He does not pay child support and he gives me abouit 30 dollars for diapers whenever he feels like it.

Jason Witt

10/16/2018 08:52:57 pm

You should consult a local attorney before any move.

11/5/2018 10:43:34 am

If there is domestic violence involved can I move to another state with my child

Jason Witt

11/5/2018 11:06:19 am

You should never move out of state with a child before speaking with a local attorney. Leaving the state to avoid jurisdiction can create grounds for an ex-parte emergency custody order.

Take a look at NCGS 50-13.5 (d)(3):
A temporary order for custody which changes the living arrangements of a child or changes custody shall not be entered ex parte and prior to service of process or notice, unless the court finds that the child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts. A temporary custody order that requires a law enforcement officer to take physical custody of a minor child shall be accompanied by a warrant to take physical custody of a minor child as set forth in G.S. 50A-311.

Melanie Dillon

11/19/2018 05:46:13 pm

My husband and I are separating and I'm wanting to move from NC to KS. He said he would give me permission to move with the kids as long as he got to keep in touch with them. He is disabled and has MS. Would I be able to move if he gives permission?

Jason Witt

11/19/2018 08:19:44 pm

You should consult with a local attorney before moving out of state with minor children.

Katrina Hunt

11/25/2018 06:58:32 pm

My sister currently is in Colorado with her son and the father of her 5yr old son now has gotten a lawyer and wants visitation and or custody. She is scared that she will have to move back to NC. He is going to school and she is working. Is she required to travel back and forth to NC? She has been caring for her son since he was born. He is saying she needs to move back there. What should she do? As this would uproot what she is doing in Colorado and him being in school. Thank you

Jason Witt

11/25/2018 08:27:36 pm

When did the child last live in NC? Has the child been living in Colorado for 6 months?

Rachel

1/16/2019 02:28:35 pm

I currently live in Charlotte NC with my 4 year old daughter and her father is currently suing for 50/50 legal , physical, and visitation. He was absent by choice the first 3 years of her life and just this last year we have been doing an every other weekend visitation . As of now I have full legal and physical custody, due to him wanting nothing to do with her when we divorced 4 years ago. He does have visitation rights but no schedule is in place through the courts only by me allowing them to spend every other weekend together. I just received a job promotion which would move she and I 3 hours away but still in NC. Given he has no legally binding visitation schedule and neither physical nor legal custody, is it okay for me to take the promotion and move 3 hours away?

Jason Witt

1/16/2019 04:20:21 pm

Moving out of state is a big deal. You would need to contact a local attorney on what to do to make sure you do not prejudice yourself before the court at the upcoming custody hearing.

Heather

1/21/2019 01:13:37 am

I’m currently going through a custody battle that has yet to go to court or have any court ordered ruling. No child support filled and ordered and no TPA. I’m in mecklenburg county at the moment but because of finances it’s likely I will move to union county with my family. Will this change jurisdiction?

Jason Witt

1/21/2019 09:57:41 am

The case will not move unless someone makes a motion to have it moved that is granted by the judge.

Sharon

10/5/2019 05:39:44 pm

My sons dad and I broke up a year ago my son has lived with me ever since , until 2 weeks ago he came and took my son from the babysitter without me knowing and has taken off to Tennessee and changed his number I haven't seen nor heard from him or my son in 2 weeks and he has blocked me from every form of contact . What can I do? And what if the court can't find him when I file for custody? My son is 3 ...

Jason Witt

10/5/2019 06:41:37 pm

You need to speak with a local attorney ASAP about getting an emergency custody order. Leaving NC to avoid jurisdiction is grounds for emergency custody, but if you wait for weeks then it may appear as if you consented to move.

Sharon

10/6/2019 01:36:57 pm

Well i contacted the police dss and no one would help I've been waiting on my appointment that I set up with a lawyer on the 10th I set it up a week ago but that was the ealies they had . I've contacted many authorities but no one has given me advise or anything

Jason Witt

10/6/2019 02:54:00 pm

Law enforcement or DSS generally will not get involved (outside a wellness check) unless there is some allegation of abuse or neglect, which is not evident just from a move.

Sharon

10/6/2019 03:51:23 pm

Ty so much for your help . I will be filing first thing in the morning .

Jason Witt

10/6/2019 04:13:58 pm

Be aware that getting an emergency custody order without an attorney is difficult to impossible in some counties.

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Can I move out of State with my child?

If I have full custody can I move out of state?

Moving out of state if pregnant

North Carolina custody relocation laws

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