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Can I take my children out of state?

Posted by CM Whitener on August 14, 2013 at 5:50 PM


A few people have asked whether or not they can take their children out of their homestate when a custody order exists. The main concern is often what legal consequnces exist for doing so. An issue also arises when no custody order exists and a parent wants to move, but the other parent does not want it to happen.

Where there is no custody order

When no custody order exists, the parents should work on establishing a parenting agreement and determine where the child should live.  However, without a custody order or agreement in place, it is hard to limita parent's rights to remove a child from the state. 

If a parent is removing a child for the purpose of avoiding North Carolina having jurisdiction or for the purpose of prohibiting the other parent's accessto the child, it could be deemed a crime under North Carolina law. Parental abduction and child kidnapping laws may come into play.

If the other parent challenges this legally, the court will look at:

  • Your motivation for moving
  • The effect the move will have on your child
  • How the move will impact the other parent's ability to have contact with your child
  • What the living arrangement will be in your new location
  • Other factors
A parent who wants to prohibit a move out of state may file a Temporary Emergency Ex parte Order to take custody of the child where they can show that harm may come to the child because of the move.

Before you move a child out of state, consult with an attorney. 

Where there is a custody order/agreement

If your custody order prohibits moving without parental consent or at all, then you cannot remove your child from the jurisdiction of the state without seeking a modification. You must be careful about ignoring such an order because the other parent has a right to use the force of law to have you abide by it. 

Read your order and see what stipulations exist as to removing the child from the state of jurisdiction (also known as the "home state.") 

Jurisdiction

In custody matters the jurisdiction follows the child. Wherever a child has lived for the six months preceding the instution of an action, that court most often has jurisdiction unless the parties agree otherwise or another order exists. 

Where another order exists in a different jurisdiction, that state's order will be given full faith and credit under the https://www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf" target="_blank">Uniform Child Custody Jurisdiction and Enforcement Act. Which means the new state will horor the old state's order. 


Whenever you have a situation where parents are living separately, it is a good practice to have a parenting agreement or a custody order in place. 

If you have specific questions with respect to child custody and child support issues contact an attorney licensed in your jurisdiction. The information provided in this North Carolina law site blog is for educational purposes only.

Categories: Custody Questions, Family

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