If you have visitation or share physical custody of your children with their other parent, relocation can be a very real concern, whether it is you who might be moving or the other parent.
Depending on how far away a proposed move is and what the current schedule is, relocation can have a devastating impact on both parents' relationship and time with a child. Because of this, disputes over relocation can be particularly painful and contentious so it is crucial that you understand some basic elements of relocation and custody.
Relocation may not always warrant custody modification
Just because a parent is moving away -- with or without the child -- doesn't always mean that a court in North Carolina will order a modification of custody. In order for a court to approve a modification request, as noted in this article, it must be convinced that there is a substantial change in circumstances and that the change affects the child's welfare.
In most cases a move is going to be considered a substantial change, as in most cases this is going to make the current custody schedule impossible to follow or is going to significantly decrease one parent's visitation with and access to the child. There are some cases where a move may not significantly decrease a parent's visitation time. For example, if a parent is only moving three hours away and the other parent only has the children every other week-end and on holidays, then such a move may not be a significant disruption to the current schedule or may not affect it at all.
In most cases, the parent wanting to relocate should be the one to request modification
If there is a court order in place that establishes a custody schedule, then the parent who wants to move needs to petition the court for a modification of the custody schedule prior to relocating. If a parent moves with the children without a new court order being in place, and this makes it impossible for the other parent to exercise their custodial time with the children under the current order, then the parent who moves can be held in contempt of court. The judge could also order the parent to return the children to the parent in this state until the issue can be heard and addressed by the court.
The biggest problem with a parent moving out of state when there is a court order in place is that if the parents have joint legal custody, one parent should not be making unilateral decisions about moving the children's residence, changing their schools, etc. Making a decision like this without the other parent's input and permission violates the terms of the parties' court order if they are supposed to be sharing joint legal custody. While there are legitimate reasons why a parent may need to move out of the state, this is a major decision that should be discussed with the other parent before plans are made.
You can address these situations outside of court
You can prevent disputes like these from even arising if you include relocation rules and guidelines in a parenting agreement. You might decide to restrict relocation altogether unless the other parent agrees, or you could set rules for how you will address any expected relocation in the future. You could also come to an agreement yourselves outside of court through alternatives to litigation, like mediation.
What happens when there is no court order in place?
What happens in a situation where parents have just separated, and there is no court order in place? Legally, can one parent just move away with the children without the other parent's permission? While there may be no court order in place prohibiting a parent from leaving with the children, this is generally not recommended. Under federal law, the "home state" of the child is usually considered to be the state where the child has lived for the past 6 months. If a parent moves away suddenly or without the consent of the other parent, then the parent who still resides here should immediately consult with an attorney regarding their options. Legal remedies may include filing for an emergency custody order to have the children returned to the custody of the parent in this state or a temporary restraining order requiring that the other parent come back to this state with the children, until the judge can hear the case and make a decision about what is in the best interests of the children. These situations can raise complex jurisdictional issues, and there are limited situations where a parent may need to move immediately for their protection or the protection of their children. If you are contemplating such a move without the other parent's consent, you should speak with a qualified family law attorney to understand the risks involved and what might be best in your specific situation.
Know your legal options before making any moves
It is crucial to note that relocation laws and modification procedures vary by state, and every case is different. If you are dealing with relocation and custody, it is critical that you understand your specific situation, options and legal rights.