My ex moved my son

My ex and I are currently in a fairly high conflict custody battle over our 5yo son. My ex has primary custody and I have 5 1/2 days out of 14 with my son. I filed a motion for 50/50 custody and since then, my ex who lived 25 miles away has moved nearly 70 miles from me and is using that as a reason, I believe, to reduce my time to 2 days out of 14. I also know my ex has our son living with his aunt half of the time, if not more. My ex goes to work at 4am and either 1: moves our son to the aunt’s middle of the night or 2: has our son stay with the aunt during my ex’s time and my ex visits our son for a few hours at a time, a few days a week. (I’ve hired a PI who has confirmed the move, my son’s location, my ex’s incompatible work schedule, and his lack of utilizing his time with our son.) We have court on Wednesday and my ex has not yet notified me of the move and I have reason to believe he does not intend to before court. My son also attends weekly therapy near where I live and I’m the only one who takes him to the appointments. (Mini back story: even though my ex had primary physical on paper, he’d been replying on me for childcare and I’d been the one to watch my son for 6 days a week for 10+ months while he was at work. Once I asked for 50/50 he had his aunt start watching our son and claimed that I’m unfit and our son is unsafe in my care.) What are my options? Can my ex just move without telling me in advance? Can he have my time reduced? Will it matter that even though my ex had the most overnights I was my son’s primary caretaker, sometimes 15 hours a day? How should I approach this to ask for primary physical and joint legal custody? Thanks.

It sounds like you have good evidence and based on what you have provided, it doesn’t sound like the father will have a strong case to have your time custodial time.

It will not look good on the father that the child is having to get up in the middle of the night and is essentially living with someone other than a parent during his custodial times. It is very good that you have the PI evidence, especially if the father denies any of this information at the trial.

You will want to focus on the fact that you’ve previously been the primary caretaker and that you handled the doctors appointments, daycare/preschool issues, or whatever the case may be for you. You will also want to focus on the stability of your home and schedule as well as the proximity of your home to the child’s doctors, daycare/preschools/elementary schools, your place of work, etc.


Anna Ayscue

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

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

Thank you for the response. I go to court on Wednesday. The PI says from what he’s seen, my ex does not have my son currently living with him. He witnessed and took pictures of my ex moving furniture into a new apartment as well. The plan, I thought, was to try and reach 50/50. I live in Cary and my ex was in Durham, he is now residing in Mebane and my son is in Graham. I expect my ex to use the greater distance as a reason to not allow a 50/50 arrangement, especially with my son starting kindergarten next month. The PI also informed me that my ex has not had my son at his new apartment at all, this is documented. Will my ex moving affect my time or the courts decisions? Was my ex obligated to tell me he moved and where to? How would you recommend I proceed? Do I have a chance to go for primary physical placement?

If you currently have a temporary child custody order, it is possible that the order requires a parent to notify the other if he/she is moving. Each parent needs to know where the other is living so he/she knows where the child is when the child is with the other parent. A judge will not like it if one parent moved without telling the other. This provision is almost always in a permanent child custody order.

The father moving further away could affect your custody time, and it could affect it positively. The judge will look at each parent’s stability in their home, proximity to doctors, preschool/school/daycare/afterschool care, etc. when making a custody determination.

Based on the information your provided, you should ask for primary custody. A 50/50 schedule, with Dad living in Mebane and Mom living in Cary likely isn’t possible unless there is a week on/week off schedule. The PI evidence should be strong evidence for you in that it shows that the father moved and the child is not living with the father at all during his custodial periods. You will need to make sure the investigator is available to testify on your behalf.


Anna Ayscue

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

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

Thank you again for the response. My case is in Chatham County, my ex and I used to live in Pittsboro, if that makes a difference. As far as the PI, would he need to testify in person or would his report and written testimony suffice?

The PI will need to testify in person about what he/she observed.


Anna Ayscue

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

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.