Custody & Moving states during separation

I’m trying to decide whether to divorce in NC or another state. My wife wants to live with her family in another state and would have to establish residency first to divorce there. We have one preschool aged child and she’s been a stay at home mom. She wants sole custody in everything and I want joint custody. Is it easy to get joint legal custody so I can have a say in education but not joint physical custody because she’s been the primary caregiver as a stay at home mom? What are my chances of joint physical and legal custody, and will that be harder to get if she moves to another state and I can only visit periodically due to work and funds for air fare? Until I can find a job there and sell the house here. If I divorce here and we separate for a year, then I still couldn’t get more time with our child because the court would say my wife can still stay at home during that year which means she’ll always be the primary caregiver? Thanks.

Assuming the children reside in NC currently, you should file a custody action now. If your wife and the children move out of state with no custody court order, it could be very difficult to establish a custody schedule and could be detrimental to your case. NC also has jurisdiction over a custody case as long as the children have resided here for the last 6 months.

Equal 50/50 custody is the norm unless there are facts and circumstances present to make 50/50 custody not in the children’s best interests. Joint legal custody with equal decision-making authority and ability is also the norm. Absent some safety concern, your wife will have a difficult time getting sole custody (legal and physical) awarded to her.

Even if your wife and children move out of state (assuming after a NC court has entered a custody order) and you remain in NC, a joint physical custody schedule in that situation would likely be that the children will be with Mom during the school year and Dad would have all or most holidays and all summer.

Anna Ayscue

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

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