Can I Move Out of State with my Kids: Part II

Can I Move Out of State with my Kids? Part 2: When There is a Custody Order in Place

In part 1 of this series, we looked at what a parent should do if he or she wishes to move with the children to another city or state and there is no child custody order in place.  Today, we are going to look at the law as it applies to parents in a similar situation but when there is a permanent custody order in place.

Similar to the information provided in part 1, if you are the parent contemplating moving out of state, you should speak with an attorney about whether you should file a motion to modify the custody order before you move.  You never want to put yourself in a position where you are violating a valid custody order.  There are usually provisions in the order which set out the exact steps you need to take if you decide to relocate.   Usually it involves notifying the other parent, filing a motion to modify or attending mediation with the other parent.  Whether or not the order specifically states the steps you should take, it is generally advisable to notify the other parent of your intent to move and to seek the court’s approval before you move the children.

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It is not easy to modify a permanent custody order in North Carolina.  In order to modify a permanent custody order, you must show the court that there is a substantial change in circumstances affecting the welfare of the minor child.  If a court finds a substantial change in circumstances affecting the welfare of the minor child has occurred, it will determine if the relocation is actually in the child’s best interests.

Believe it or not, relocation (and remarriage for that matter), in and of itself, does not constitute a substantial change in circumstances.  The court will have to make additional findings to support the conclusion that a substantial change in circumstances has occurred in your case.

Once it does, the court will look at several factors to decide whether or not the move would be in the child’s best interest.  These factors include:

• The advantages of relocating in terms of the capacity to improve the life of the child; and
• The motives of the custodial parent in seeking the move; and
• The likelihood the custodial parent will comply with the court’s visitation orders when he or she is no longer subject to the jurisdiction of the courts of NC; and
• The integrity of the noncustodial parent in resisting the relocation; and
• The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

Motions to modify custody based on relocation of the primary physical custodian can be tricky.  There has been recent caselaw in North Carolina where the court upheld a decision to give physical custody to the noncustodial parent because the court found it was not in the child’s best interest to move out of state.  That is why it is important to have an experienced Raleigh child custody attorney represent you in cases like these.  Contact our office today to discuss your legal rights.

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