Stbx threatening to take children away

North Carolina Divorce Law Divorce and Separation Answers
1

We separated in March 2009 and neither of us have field for divorce. We do not have a signed consent order yet I am the custodial parent and he works in TN, visiting them every other weekend while he still has a residence here. He is not paying child support and has given me no money since August 2009. We just had a fight because he said he is going to start working here for 1 week out of the month and he wants the kids for that whole week and I said we needed to talk about it because it seemed disruptive to their current routine (ages 9 and 2). He said he is going to get an attorney and try to get full custody and even maybe move them to TN.

My question is whether he can really do that, given that they’ve been with me except for every other weekend and a few visits during the week when he still worked here. He says that since he is their father he can take them any time he wants to and that I cannot stop him since we don’t have a custody agreement in place. He says he knows all these lawyers in TN, blah, blah. I’m scared.

2

Your ex is correct that he does have the right to take the children anytime as there is no Order or agreement, you both have equal access to them. He cannot however, unilaterally move them to TN. If he attempts to do so, you can and should seek an emergency order requiring him to return them.

NC is the home state of the children, and any action for custody will be in NC. As the primary caregiver of your children for over a year since the separation, you have a much stronger case than he does for primary custody. On top of that, relocation cases are very difficult, an absent extreme circumstances, one parent (even the primary custodian) is not usually granted the right to take the children out of state and away from the other parent.

I suggest you call his bluff and nip all this in the bud. File an action for custody and child support now. He has been dragging this out to have something to hold over your head for over a year now.