It took six years, but you finally did it. You got the job in management. In a month, you’ll move to Seattle. You thought this day would never come!
But Seattle is a long way from Raleigh, North Carolina. What are you going to do about the children? You don’t have much time before you need to move.
Of course, you want them to move with you. You never really let yourself think about whether they would stay in North Carolina. Would a judge force you to leave them behind and give their father full custody?
Moving out of state for any reason almost always creates issues with custody arrangements, including the time and additional expense of travel.
Regardless of whether a court order or settlement agreement is in place regarding custody, or even if you have no formal agreement at all, things just got a lot more complicated. Needless to say, driving 15 minutes to pick up your children is much simpler than flying across the country to see them.
So what happens when one parent needs to move out of state? What do you do first?
The answers will vary depending on whether you have a custody agreement and, if so, what type it is.
Whether your custody arrangement was established through a separation agreement or by a custody order from the court, you must follow its terms. Unless that arrangement addresses your move out of state, moving would probably violate the agreement or order. You will have to have the arrangement modified, either by consent of the other parent for an agreement or by a judge if you have a court order regarding custody.
What If a Custody Order Is in Place?
For example, let’s say you share 50/50 custody with your ex-husband under a court-entered custody order. The children attend school close to your neighborhood. Both of you share responsibilities for the children’s school and social activities. You tell your ex-husband about your new job and ask whether he agrees that the children should move with you to Seattle. He says absolutely not.
Should you move first and contact a lawyer to modify custody after you are in Seattle? What if you file the motion before you leave but move with the children before the court hearing?
Regardless of whether the order specifically prohibits moving out of state without the other party’s consent or a modification of the order, it will be impossible to abide by the current order. You can’t be in two places at once, so you’ll violate the order if you move.
If that happens, the other parent could file a motion for contempt for violating the order and ask that you immediately return the children to North Carolina.
It may even be possible for the other parent to gain temporary custody and the immediate return of the children to North Carolina if you violate the order.
What If the Other Parent Had Only Minimal Visitation?
Staying with this example, let’s change the facts. Now the children’s dad only has visitation every other weekend, on half the holidays, and for two weeks in the summer. The order is silent on either of you moving out of state.
Technically, you could move with the children and still follow the order. You would just need to fly the children back for visits every other weekend, half of the holidays, and two weeks in the summer.
In this example, because the order doesn’t specifically forbid you from moving out of state and visits could continue uninterrupted, you could move without violating the order, at least in theory.
That said, it’s still not a good idea to make a drastic cross-country move without first addressing custody. Yes, in a technical sense, you could follow the order if you could afford to fly the children back every other weekend. But the children would still be uprooted from their current life, plus they would now spend a minimum of several hours every other weekend traveling.
Even if the distance were much shorter, such as a neighboring state only four or five hours away by car, you would be changing in the children’s lives substantially. While the travel would not be nearly as burdensome as cross-country flights, the kids would be uprooted from school and friends. Their lives would definitely be disrupted.
Thus, the need to address custody is still there. Moving without amending the agreement or the order has the potential to create much bigger problems.
Note that under these examples, if the court order did include a provision restricting out-of-state moves, you would violate the order by moving without first modifying it. This is so even in the example where your ex-husband only has minimal visitation.
What Do You Risk If the Custody Order Is Not Modified Before You Move?
Let’s say the order did explicitly restrict moving out of state, but you move anyway. What happens? Because you’re violating the current order, a judge would most likely hold you in contempt of court. The judge may also require you to pay the other parent’s attorney’s fees (in addition to your own).
More importantly, making a unilateral move could influence how the court views your judgment going forward. The court may tend to believe that you will make decisions impulsively or based only on what you want rather than planning and considering the children’s best interests.
While you may not have technically violated the order if visitation is still possible, the judge may not approve of you suddenly moving to another state without first advising the court.
But who cares whether the judge ultimately approves of your move?
The problem is that judges don’t like it when parents make drastic moves that affect the children without having an agreement or a hearing first. Most judges would not look kindly on one parent moving out of state without addressing custody beforehand. This kind of short-term action could have long-term consequences.
A judge may ultimately deny the children’s move or, in a worst-case scenario, give custody to the other parent.
It is almost always better to file the motion for custody first and have it heard before you move. This shows your respect for the court process and for the other parent. Most importantly, it demonstrates your willingness to act in the best interests of the children.
What if you need to move quickly? Your best course of action is to explain the circumstances and request a hearing as soon as possible. Understandably, this can be a real hassle when you already have a million things to do to move. But these are the issues that you must deal with when you share custody of your children.
What If You Don’t Have a Custody Order, But a Separation Agreement Addresses Custody?
Now let’s suppose that you don’t have a court order, but your separation agreement does detail the terms of custody. That agreement includes a clause that prohibits either parent from moving out of state without the other parent’s written permission.
To modify the terms of a separation agreement, the other parent must agree to the modification. Otherwise, you’ll have to file a new action for custody with the court.
So, let’s assume again that your ex-husband will not agree to your move to Seattle with the kids. You file a case asking the court to decide custody.
In this scenario, if you move before the judge rules on the matter, you immediately violate the separation agreement.
What might happen if you move anyway? Most separation agreements include provisions for payment of the other parent’s attorney’s fees if the agreement is breached. And again, making such a drastic move without an agreement with the other parent or input from the court could influence how the court views your judgment.
The Home State
As a matter of terminology, a child’s home state is the state where he or she has lived for the last 6 months. That means that state has jurisdiction over custody of the child. If you and the children leave the home state without adequately addressing custody issues, you are removing the child from his or her home state.
Why would this matter? In this situation, the other parent could easily file an ex parte custody action in court. This action alleges that the child has been removed from his or her home state without permission. The court could issue an order requiring you to return the child to the home state. The other parent could then take this court order to the local police department—in this case, in Seattle—and local law enforcement would assist in enforcing the order by retrieving the child to return to the other parent.
Ex parte custody actions are allowed so that parents cannot jump from state to state with their children. To avoid this problem, jurisdiction is proper in the state where the child has resided for the past six months. Otherwise, there would be no way to control the movement of children or determine which state could issue custody orders.
Could You Ever Move First With the Children and Then File With the Court or File With the Court and Leave Simultaneously?
Maybe. Domestic violence could be a valid basis to move first and file later or to file simultaneously with a move. If the other parent’s conduct has been consistently threatening and you truly fear for the safety of the children or yourself, then, in some circumstances, moving immediately may be not just possible, but preferable.
It may still be best to file an ex parte domestic violence protective order. This will alert the court about your intent to move temporarily and allow the court to quickly hear your case on emergency custody.
What if there’s no violence, but you have a financial crisis? Financial issues are always a concern for parents. If you need to move because of unexpected and uncontrollable financial issues, you may feel that you need to move immediately and have a custody hearing later. This can be tricky, especially if the court believes that your financial issues were self-imposed. You could still face the other consequences we discussed above. It is best to talk to an attorney before you move, even for a financial emergency.
If the Other Party Has Only Minimal Visitation, Wouldn’t It Be Okay for Me to Move First and Address Custody Later?
It may be easier to move if the other parent has only minimal visitation, but it doesn’t mean that you can just pick up and go. You still need to either reach an agreement with the other parent or get the court’s permission with a modified order. Sure, you could take the risk and move without modifying the arrangement. But in the long term, that will probably hurt your case. You could suffer the sanctions mentioned above, and you may also find yourself having to ask the court to forgive your actions.
Certainly, a unique situation may arise that calls for you to move quickly. You may decide that you have to move first and answer the court’s questions later. Just know that this is rarely the best choice, even when the other party doesn’t have extensive visitation rights.
So, What Should You Really Do First?
First, take a step back and calmly assess your reasons for the relocation. Is this move really in the best interests of your children? For just a moment, forget about what is best for you. Focus on what is best for the children and how the move will affect them.
Second, discuss your situation with your attorney. Every district and every judge will have a different approach to relocation. Your attorney will know how these types of cases are usually treated in your district. You may be at the mercy of the judge, but it is rarely to your advantage to move first and ask questions later.
When it comes to child custody and relocation, the aptly named North Carolina case Frey v. Best said it best:
Naturally, no hard and fast rule can be laid down for making this determination, but each case must be determined upon its own peculiar facts and circumstances.
Judges are human, and their own personal experiences and emotions will surely play into these cases. It is best to go into these matters with your eyes wide open, aware of the “peculiar facts and circumstances” of your own situation as well as the potential consequences of relocating without the court’s permission.