Relocation and Child Custody: Can I move out-of-state with my kids after divorce?

After divorce, the idea of a “fresh start” can be enticing. You may want to move away and start a new chapter of your life where no one knows you as your former spouse’s wife or husband. For a child, however, relocating to a new place can be difficult. Moving uproots a child from the home that they know, their school, and their friends. If you share a child with your former spouse, it is unlikely that you can relocate out-of-state easily with your child, even if you are the primary custodian of the child. Even if you do not have a custody agreement in place, if you share parenting time with a co-parent, it is not wise to move out-of-state without getting your co-parent’s consent or the court’s permission first. A court cannot tell you where to live and as an adult, you have the right to relocate, but that does not mean you can bring your child along with you in every circumstance.   

Relocation with a Custody Order in place
If you already have a child custody order in place, that is the first place you need to look to determine what is necessary if you want to relocate with your child. Many custody orders will specifically address relocation. Some custody orders explicitly state a geographic limit on how far you can move from the child’s hometown or a specific amount of notice you are required to give your co-parent before a relocation. For instance, your custody order may state that you do not need consent to move within the surrounding counties of your town. If your planned relocation is within that geographic limit, then you don’t need consent from your co-parent to relocate! You would just need to give your co-parent the required amount of notice prior to your relocation, per your custody order terms.

​If your custody order requires you to give your co-parent notice or receive consent to relocate, you need to consult with your co-parent about the relocation. Explain the reasons behind your relocation plan. Discuss a feasible plan for a new physical custody schedule or how you will maintain the current physical custody schedule. Consider how the child will be transported back and forth for the other parent’s parenting time and who will pay for any additional travel expenses (if you are making the choice to relocate, this additional cost may be something you take on). If you can get on the same page with your co-parent about relocation, you have the freedom to modify your custody arrangement as you see fit. If you and your co-parent agree on a new physical custody schedule and you need to modify your Consent Order for Child Custody, reach out to us to help with that process.

​Return to Court, if necessary
If you notify your co-parent of your intention to relocate with your child and your co-parent does not give you consent, then you can file a motion or lawsuit with the court requesting to relocate. If granted, a new court order would be entered by the court.

It is not a good idea to relocate with your child without getting the court’s permission if your co-parent does not consent. You could be in violation of your custody order and could be held in contempt of court, ordered to pay a fine, or even serve jail time. It could also hurt your own case later, as most judges do not want to see parents absconding across state lines with a child. If you relocate without permission of your co-parent or the court, that action will serve as evidence that you are not prioritizing your child’s relationship with the other parent and can negatively impact you. Additionally, your co-parent could file for and receive an emergency custody order for your child, which would result in you being forced to return the child to his or her home state.

Challenging your co-parent’s proposed relocation
If you are not the primary custodial parent, your co-parent plans a relocation and you disagree, you should of course first engage in a good faith discussion with your co-parent about why you oppose the relocation. If discussions fall flat, you can challenge the relocation in court. You would need to show the court that the proposed relocation is not in the child’s best interests. If the move will necessitate a change to the child’s school, remove accessibility to the child’s close family members who all live in the area and support the child, if the child has unique educational or sports opportunities in the area and would lose out on those opportunities if they relocated, or if the child moving would prevent a continued relationship with a parent for lack of resources to pay for travel or any other reason, the judge might find that the relocation is not in the child’s best interest. These are just examples and not the only considerations a judge might make in determining if a relocation is in a child’s best interest.

What does a court consider in a relocation case?
The court must consider all relevant factors in a parent’s request to relocate with a child. Most notably, your reasons for the relocation and whether the relocation is in the best interest of the child. You will need to prove to the court that the advantages of the move will outweigh any potential negative impact the move might have on a child.
Factors the court may consider in North Carolina relocation cases are as follows:

• Advantages of the relocation in terms of its capacity to improve the life of the child.
• Motives of the custodial parent seeking the relocation.
• Likelihood that the custodial parent will comply with custody orders when he or she is no longer subject to the courts of North Carolina.
• The integrity of the non-custodial parent in resisting the relocation.
• The likelihood that a realistic parenting time schedule can be arranged which will preserve the parental relationship with the non-custodial parent and child.

​Relocation with no Custody Order in place
Again, it is not wise to relocate out-of-state without the other parent’s written permission. Seek your co-parent’s consent in writing first. If your co-parent will not agree to your relocation with the child, then you can file a motion or lawsuit requesting the court’s permission to relocate with the child.
If you are considering relocating or your co-parent has brought up a proposed location, please reach out to our office. We can help you understand your options in a proposed relocation as it applies to your unique circumstances.  

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