Unfortunately, children do not have much say in the matter. Their desire to stay with one parent or the other may be taken into consideration due to their age, but the courts will ultimately choose to do what is in their best interest.
You can file a motion with the courts that she not be allowed to leave the state until custody is decided. Yes she can leave the state, but I do not believe that legally she can take the children without your consent or agreement. Hopefully, an attorney will respond to this because I am not quite sure the route to use for this but I know it can be done. But until custody is decided legally, both parents are entitled to equal visitation time with their children and have equal rights and responsibilities toward them. It’s just that most of the time that doesn’t work out if the parents are living too far away so one parent ends up the “weekend” parent.
It could be worked out that you share joint legal custody of all three children, you have primary physical custody of the twins and she has primary physical custody of the other boy. If you can agree to something like this with liberal visitations, it would be in the best interest of the children. If you have not already done so, you should get a separation agreement drawn up. Until you either agree on custody or have a court order, you both have equal custody of all three children. If you believe that she is going to move and is not willing to compromise, you should really contact an attorney and file for custody. If it’s at all possible, you really should work something out between you two though…the only ones that win in custody cases are the attorneys…
Custody is always decided based on the best interests of the children. The court will sometimes listen to the wishes of the children, but will make a decision that is in their best interests. If your children want to stay with you because they are comfortable in this are, they have friends, family, and a community here that they do not want to leave, those are all factors a court will consider when deciding what is in the best interests of the children.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
My wife and I are divorcing and she is moving out of state back to her home town which is 850 miles away from our home in NC. She wants to take our 3 sons with her and I am arguing that it is too far and that she should stay in this state. Also, at least 2 of my sons want to stay with me and they have been very clear with her as to their intentions.
Does my wife have the right to move out of state and if so do the children have the right to stay with me if they so choose. By the way, the 2 sons that want to stay with me are 12 year old twins.
Thank you for your quick reply.