In the United States, we enjoy certain fundamental rights, including the right to interstate travel and live wherever we want. If, however, you are divorced or separated from your spouse, and you have a child together, you need to be careful before you move out of state with your child.
The first question is, is there a court order or contractual agreement in place that dictates your custodial arrangement? If there is no custody order or contract, the theoretical default is that both parents have equal custodial rights. This means that technically, there is nothing preventing either parent from moving out of state with the child. However, you should consult an attorney before you pick up and move out of state with your child.
Under North Carolina law, if you move out of state with your child without the consent of the other parent or without first obtaining the Court’s permission, or if you even threaten to do so, you would be creating one of the classic grounds for the other parent to get emergency custody. If the other parent can show that there is a “substantial risk that the child will be abducted or removed from the state of North Carolina for the purpose of evading the jurisdiction of North Carolina courts,” they may be awarded temporary emergency sole custody.[1]
Even if emergency custody is not granted, for a period of six months after the child has been removed from North Carolina, North Carolina courts will still have jurisdiction over the custody of the child. This means that the parent left behind in North Carolina can petition the Court in North Carolina for a custody order, even though the child is already in another state. Imagine how the North Carolina Court would look upon your unilateral removal of the child out of state… you’d better be able to convince the Court that you had a very good reason for doing what you did.
If you want to move out of state with your child and the other parent will not agree, then the better practice is to file for custody and first obtain the Court’s permission. You will have to convince the North Carolina Court that it would be in the child’s best interests for him/her to move to the other state with you. Depending on your circumstances, this may be an uphill battle. Keep in mind that even if the Court allows you to move out-of-state with the child, absent extraordinary circumstances, the Court will ensure that the parent in North Carolina will still have time with the child.
All of this applies whether you are divorced already, not yet divorced but separated, or never even married. If you are not together with your child’s other parent, and you do not already have an order or agreement allowing you to move out of state with your child, you should consult an attorney.
What if you already have a custody order or agreement in place? If so, rule number one is to follow the order/agreement. If the order/agreement explicitly prohibits you from moving out of state with your child, then you should not violate that.
Most likely, though, your custody order/agreement will not explicitly prohibit you from moving out of state with your child. However, you will still need to ask whether moving out of state would no longer allow you to comply with the provisions in the order/agreement. If, for example, one parent only has custody on school holidays, you may be able to continue exercising the current custody schedule even if one parent moves out of state. On the other hand, if you share 50/50 custody of your child, it will likely be unfeasible to continue that custodial arrangement after one parent moves out of state. In that case, you will need to obtain a change to the order/agreement before you move. The simplest way to do this is to get the other parent to agree to change the order/agreement. If the other parent does not agree, the Court will need to decide. How to win such a case in Court is a whole topic for another article.
Finally, just in case you’re wondering, moving out of state is not a way to avoid child support –the duty to support your child will follow you wherever you or your child goes.
[1] See N.C. Gen. Stat. §50-13.5(d)(3)
