Can I move out of state with our kids?

My husband and I have decided to separate. I’d like to move out of state to a place where I will have support with the kids, family that will help with babysitting and other needs a single parent may have. My children have an established relationship with this family. If I stay in NC, I have no support, just my husbands side of the family and they’ve only helped occasionally while we’ve been married. My children don’t have a strong bond with them since my husband is former military and we lived in California and Japan. We have no separation agreement, have not been to court and just decided to part ways. Am I able to move out of state with our children? If I stay in NC I have no place to go, and no help. If I leave the children and I will have a place to stay while we get settled and an abundance of support. So my concern. am I able to leave with the children? Will it be abandonment or kidnapping? I have no intentions of getting in the way of the children’s relationship with their dad, he’s a relatively good dad, just a terrible husband. Thank you for any insight.

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You can leave the state with the children because there is no court order or separation agreement regarding custody, however, this could open yourself up to an emergency custody action by your husband. Emergency ex parte custody can be granted if there is a substantial risk that minor children will be removed from the State of NC for the purpose of evading NC jurisdiction.

You leaving the state will not be considered abandonment since you and your husband have mutually agreed to separate. It could be considered parental kidnapping if you violate your husband’s visitation rights by keeping the children away from your husband.

The better course of action is to negotiate a custody schedule or file a custody action before moving out of state. That way, when custody is fully resolved either in a separation agreement or a court order, your ability to move out of state will be clear and there will be no issues of emergency custody or parental kidnapping.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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