With Spring around the corner, thankfully, it makes me consider that the school year is going to be ending soon. Often this is when folks start planning a move. When you have children, relocating is not just your decision anymore. If you do not have custody order in place and decide to move out of the State of North Carolina, you should be careful that you do not set yourself up to have an emergency custody action filed against you. One of the justifications for seeking emergency custody is the “substantial that the child may be abducted or removed from the state of North Carolina for purposes of evading jurisdiction of the North Carolina courts.” If there is no pending custody action, you have not subjected yourself to the jurisdiction of North Carolina. This issue arises often, and more often than not, the moving party was not aware of the consequences of their actions when they moved. It is for this reason, if you are considering relocating, seeking legal advice well in advance of your move is imperative so you do not take action that may open the door to a possible emergency custody action being filed against you.
Another issue that is common is when a custody order is in place and a party wants to move. You must file a motion to modify if you are not able to comply with the current order in place after the move. For example, Mom and Dad have an entered custody order. Dad has Wednesday dinners from 4 to 7 pm and every other weekend. Mom and Dad both live in Wake County. Mom decides to relocate to Asheville to live with her fiancé. With four hours between Mom and Dad now, Dad will no longer be able to exercise his Wednesday night dinners and most likely the weekend visitation will be difficult at best. The first time that Dad is not able to exercise his court ordered custodial time, Mom is subject to being held in contempt of court. One of the repercussions of being held in contempt of court is the possibility of jail time. Being held in contempt carries significant consequences. Mom needs to file a Motion to Modify Custody based on her move and show the judge why allowing the children to move with her is in their best interest. Mom will also have to show that she is not attempting to negatively impact Dad’s relationship with the minor children due to the move. The Judge will take into consideration whether the move is in the children’s best interests, considering both the mother and father’s relationship with the minor children as we as other factors.
Because it can take several months to get into court to get your case heard, it is not prudent to file a Motion to Modify Custody within a month or two of an anticipated move. Ideally you should file such a motion at least six months prior to your move, if not more, to be certain you can have your hearing and obtain a result well in advance of your move. Otherwise, you may have to overcome some significant hurdles to comply with a court order that is no longer viable for your children, or you may find yourself served with an order to show cause for failure to comply with the court order.
Again, be very proactive when considering a relocation involving children. It is imperative that you seek legal advice to ensure you are protecting your legal interests with regard to your children as part of the relocation process. Our firm has significant experience with child custody relocation cases; feel free to contact our office to schedule a consultation to discuss your unique situation.
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