With the arrival of the Covid-19 pandemic in the spring of 2020, our family law attorneys at The Twiford Law Firm are at the forefront of helping parents face a host of new challenges. A frequent question from our clients is whether a parent can move a child out of the state if the parent does not have a child custody agreement or does not seek modification of an existing agreement to allow the parent to move the child. This blog post provides a summary of the legal rules that apply in these circumstances.
In a previous blog post, our domestic law attorneys discussed the issue of Relocation of Children After a North Carolina Divorce. The same North Carolina laws apply in the absence of a child custody agreement permitting relocation or the failure to seek modification of an existing agreement to permit moving the child. A custodial parent wishing to move a child must be aware of the applicable laws and the authority of North Carolina courts over child relocation. Significant negative consequences may result if the parent moves the child without following the legal requirements.
The State of North Carolina has a comprehensive body of statutes that apply to child custody matters. Those laws determine parental custody rights regarding children in the state. Protection of a child’s well-being and welfare is the cornerstone of all those laws, especially since children are not capable of legally protecting themselves. Ultimately, all court decisions relating to a child revolve around what is in the child’s own best interests.
In determining parental authority to move a child out of North Carolina, the most important initial issue is whether courts in the state have jurisdiction over the child. The relevant statute is the Uniform Child Custody Jurisdiction and Enforcement Act. This law is in place in North Carolina and 49 other states. The Commonwealth of Massachusetts is the only exception.
The Uniform Act includes extensive provisions that determine jurisdiction of North Carolina courts over custody issues. Central to those provisions is the determination of whether North Carolina is the home state of the child. The law defines home state as follows:
“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
North Carolina courts have jurisdiction over a child and custody matters involving the child if the state is a child’s home state. In the event a state other than North Carolina is the child’s home state, the statute addresses interjurisdictional issues of a child located in North Carolina. It is important to note that special provisions of the law apply to military parents.
If North Carolina is your child’s home state and you have a child custody agreement, the agreement governs your ability to relocate the child. If you do not have a child custody agreement or the agreement prohibits moving the child out of state and you do not seek modification, relocating the child out of state without securing the written consent of the child’s other parent poses risks and complex legal issues.
If you move the child out of North Carolina without written permission from the other parent or court approval, the other parent can file a court action in North Carolina. If North Carolina is the child’s home state, a custody petition by the other parent could result in requiring you to return the child to the state. The court might award emergency custody to the other parent. If an action is filed and you claim that North Carolina is not the child’s home state, you must demonstrate that fact to the court through evidence to that effect.
In subsequent custody proceedings, the fact that you moved the child without permission could be a significant disadvantage. You also may have to pay the other parent’s court costs and be subject to additional penalties.
If the other parent will not give written consent to moving the child out of North Carolina, you may petition the court for a child custody order permitting relocation or modification of an existing custody agreement to allow the move. The court’s primary determination is whether moving to the new location is in the child’s best interests. Making that decision includes taking a wide range of factors into account, including the impact of a move on the visitation rights of the non-custodial parent.
If you petition a North Carolina court for permission to relocate a child, you must be prepared to demonstrate that moving the child is in the child’s own best interests. That requires producing evidence in court to address an extensive list of considerations established in the statute and prior North Carolina court decisions. An explanation about those considerations is included in our previous article on child relocation.
Compiling the required evidence and providing it to the court requires assistance from an experienced North Carolina child custody lawyer, such as our domestic law attorneys as The Twiford Law Firm. If you attempt to represent yourself in child custody court proceedings, you could seriously jeopardize your ability to retain custody and relocate the child.
If you move a child without permission from the other parent or a court, you face substantial legal risks, including losing custody of the child and the imposition of penalties. It is imperative that you consult with a knowledgeable child custody lawyer before you take any action.
At The Twiford Law Firm, our child custody attorneys help clients with all types of custody and visitation issues, including moving a child to another state. We assist clients who want to relocate a child, as well as parents facing a relocation request from a child’s custodial parent. Our services include helping clients with all types of family and domestic law matters.
With offices in Elizabeth City and Moyock, we serve clients throughout Northeastern North Carolina. Call us at 252-338-4151 (Elizabeth City) or 252-435-2811 (Moyock) or complete our online form to schedule an initial consultation.