Can I move with my child? – Child custody cases can be very stressful for the parents that are involved.  One of the problems is after the initial child custody order, that is rarely the end of things.  This is because life happens.  Children go through life changes and their needs evolve, and parents also go through life changes and their needs evolve. This is why motions for modification of child custody are filed so often at the courthouse.

To modify custody, you must show the court a substantial change in circumstance that affects the welfare of the minor child. One of those changes of circumstances that occurs relatively often is a major relocation.  In this blog, we will talk about what considerations are involved with moving your child out of North Carolina.  This blog is intended to provide some very basic information and would not be anywhere near adequate to substitute consulting a family law attorney. As you will see, this is a complicated topic that is incredibly case-specific and should be handled strategically.

I want to move out of state with my child, how do I do that?

“It depends” seems to always be an answer you are likely to get from a lawyer and this is a prime example of when this applies.  One of the things it depends on is whether the other parent agrees with you making the move. If he or she does, things will be much easier, but if they do not, things will be harder. Let’s examine these two scenarios.

The other parent agrees

If the two of you agree to the move, it is simply a matter of following a process and getting a modification done.  You can file a motion to modify custody, allege a substantial change in circumstance (that you are moving out of the state), and submit a consent order (signed by both parties) with the motion.  North Carolina judges do not interfere with agreements of the parents unless they independently think it would be to the detriment of the child or is not in the best interest of the child, or if you are asking them to do something that they don’t have the power to do.

The other parent does not agree

If the parents don’t agree, the process becomes a little bit more contentious.  A motion for modification of custody should still be filed, but in this case, you most prove that a move that has not yet occurred is somehow a substantial change in circumstances.  The tricky part here is that the alleged substantial change in circumstances has not actually occurred. You may have other factors related to the move (e.g., new job, marriage) that may support a finding of substantial change in circumstances.

Further, if the motion to modify is granted, that simply reopens the question of custody, which could lead to a result that you don’t want, such as the other parent getting primary custody. A judge cannot forbid you from moving, but he or she might tell you than cannot take your child with you. Remember that a finding of substantial change in circumstances is simply a preliminary requirement. The judge then applies the best interest of the child standard to determine what custody arrangement would be in the best interest of the child, including if a move would be in their best interest.

Click here for Part 2 of this blog.

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