Separating and leaving the state with kids


#1

I have decided to end my marriage and move back to my home state of New Mexico. My husband has said he will be returning to NM as well but wants me to wait until he’s ready to go in mid July… We have 2 children, 1 is 11 and not biologically his, but he’s been the only father he knows, the other is 3 and he’s ours together. I have been the primary care giver for the past 3 years being a stay at home mom. My question is how can I take the kids back to NM at the end of June rather than wait for him to be ready? He still owns a house in NM and my kids and I will be moving in with family.


#2

If you and your husband have decided to separate, either one of you can leave the martial residence and live where you’d like. You would not have to wait for him as long as it is a mutual decision to separate.

Since there is a biological child between the two of you involved, be sure that separating and moving to another state with that child is a mutual decision. As of right now, North Carolina likely has jurisdiction to issue orders of custody because North Carolina is the child’s home state (a child’s home state is the state in which the child has resided for the last six months). If your husband did not agree to you moving to another state with the child, he could file a custody action in North Carolina to keep the child from being removed from the state.


#3

He has agreed to leave the state as well but at a later time than I would like to. Can he hold me back from leaving before him? He wants to leave the state together because he wants the financial help from my dad who is footing the bill for my kids and I to move.


#4

No, he cannot hold you back from leaving before him. He could file a custody action to delay the children from being removed from North Carolina but it sounds like his reasons to leave at the same time are financial and not related to child custody.


#5

Since this post my husband and I have officially been separated since June 14th. He and his lawyer are now threatening a lawsuit after I offered 50/50 custody with no child support at this time as long as I can leave the state as soon as possible. They didn’t counter offer just stated a lawsuit would be filed and I would have to vacate the current Residence (his step dad’s home, he lives with his mother and step dad and hour away) by August 1st. I am not working and don’t know a single person where I live and the only people I do know is his family. His lawyer said this 6 days ago! Still no lawsuit has been filed. They also said if I leave the state they will file for emergency custody. My thing is, I will be homeless in 3 weeks with 2 children! I have no other choice other then to go home to NM where I have a place to stay, a job, and support. Is there something I can do to make this move faster? What happens if I leave and they file emergency custody?


#6

The only way to make the custody issues move faster would be to have an agreement between the two of you that could be entered as a consent order with the courts or executed in a separation agreement.

If you leave the state with the children and an ex parte custody action is filed (“emergency custody”), then the judge could order that the children be returned to North Carolina. If an ex parte custody order is issued, there will be a court date within 10 days of the filing in which you would have an opportunity to attend and be heard.


#7

this thread is really helpful.