Resolving North Carolina Custody and Visitation Disputes When Parents Live in Different States Can be Tricky Because Things CHANGE!
When a Parent Moves With No Custody Agreement in Place
Unfortunately, far too many North Carolina divorcing couples make what they think are binding verbal agreements regarding the custody of their children. They make these agreements assuming things will never change, and that they don’t need court interference in order to decide what is best for their children. While there is much to be said for parent-negotiated custody plans, these plans must be in writing and must be filed with the court in order for them to be legally binding. (Separation agreements are not filed with the court) Many parents have been blindsided by a change to an existing verbal custodial arrangement when one parent decided to move to a different state.
The children of the marriage are also vulnerable to such an unpredictable disruption in their living arrangements, and with schools and friends. With no binding agreement in place, either parent is totally free to leave the state of North Carolina with the children unless the purpose of leaving the state is to evade jurisdiction of North Carolina courts. If a parent decides to leave the state without their spouse’s permission or a court order, the spouse remaining in North Carolina may be entitled to gain custody through an ex parte emergency custody order.
When a Parent Moves Prior to a Custody Agreement
There may also be the situation in which a parent moves with the children out of the state of North Carolina prior to determination of custody. This is becoming more and more common, as a parent moves to be closer to family, to find employment, or to allow a child to attend a particular school. When this issue occurs, the courts must determine which state will hear the custody case. The goal of states is to avoid a situation in which child custody issues are re-litigated simply because one parent is unhappy with the decision in one state, so moves to another state and attempts to re-try the issue.
The North Carolina Uniform Child Custody Jurisdiction and Enforcement Act will govern whether the state has jurisdiction in any given child custody issue. This act seeks to establish jurisdiction based on “home state.” The child must have resided with one parent in the state of North Carolina for a minimum of six consecutive months prior to the filing of the custody case in order to be considered the home state. This state has jurisdiction to make the initial custody determination, so long as at least one parent remains a North Carolina resident. The state of North Carolina will not, however, make changes to custody decrees from another state unless that state refuses to exercise jurisdiction or has, for some reason, lost jurisdiction. This does not mean North Carolina is unable to enforce custody terms set by another state.
Relocating When a Custody Order is in Place
If a North Carolina custody order has been issued, and the primary physical custodial parent decides to relocate, a judge can decide if the parent should be allowed to move. Often, agreements contain a provision that the parties agree to attend mediation prior to one party moving more than 60 miles from their current residence. Of course the courts will only get involved if the non-custodial parent objects to the move. Reasons for the move, the age of the children, how the move might affect current visitation orders and the current frequency of contact between the non-custodial parent and the children will be considered by the court should one parent object.
In some instances, the move may be allowed, however the non-custodial parent may be awarded long stretches of visitation with the child. School schedules must be taken into consideration, therefore in some cases the child will spend the summer vacation and perhaps the Christmas or Spring Break with the non-custodial parent. It is crucial that you work closely with your North Carolina family law attorney to make provisions for a potential move by one parent.