Moving Out-of-State and the Divorce Process

While you may have the legal right to move anywhere in the United States, you may not have the legal right to take your children with you. Depending on your unique sets of facts and circumstances, if you are considering a divorce, in the middle of a divorce, or have already received a divorce, you should seriously consider all factors before making the decision to move out-of-state. It is not guaranteed that you have the ability to take your children with you under child custody laws. Consider the following requirements that pertain to these three situations — before a divorce, during a divorce, and after a divorce. If you are considering a move out of state, you may or may not be able to take your children with you.

You have the right to move out-of-state before divorce paperwork is filed. You also have the right to do that with your child, but you must inform the other parent of your decision. If your spouse does not approve of your decision to move out of state because it would limit the time they have access to their child, they have the ability to file a temporary order with the court in order to prevent you from taking your child with you. In some circumstances, it could be considered kidnapping if you take your child out of state and fail to inform your spouse that you are doing so.

It is important to note that even though you may have the right to take your child out of state, a court may not look favorably on the fact that you are willfully and intentionally moving a child away from another parent. Courts have an overall tendency to want to keep a child in contact with both parents because they believe that it is in the best interest of the child. If one parent is making the decision to move a child away from another parent, a court may look unfavorably on that decision and it may ultimately affect your child custody determination.

A divorce process can take a considerable amount of time to resolve. During that time, you may have the opportunity to get a new job or need to move to another state for personal reasons. If you decide to move to a new state during the divorce process, you will need to know whether the court already established a preliminary injunction against you taking your child with you. A preliminary injunction is a court order that you must comply with and it is sometimes put into place at the beginning of every divorce process. The reason that courts create and enforce these types of injunctions is to directly prevent a spouse from taking a child away from the other spouse. While you may have the legal right to take a child out of state for a vacation, you may have to obtain the other parent’s signature and approval to do so during the process of a divorce. If you make the decision to move out-of-state, the only way you will be able to bring your child with you is if you receive approval from your spouse to do so as well.

If you have already received an order from the court regarding your divorce, there is a parenting plan in place that was ordered by the court. These parenting plans are not simply suggestions or guidelines, they are legal requirements that both parents must follow after a divorce. In most cases, a parenting plan will not allow one parent to take a child out of state without a complete legal modification of the child support order. If one parent still makes the decision to move out of state, the other parent may have the ability to request that the court grant them full-time custody of the child.

If you are attempting to make a decision regarding moving out of state either before, during or after your divorce, it may have a great impact on your child custody arrangements. Consult with an experienced divorce lawyer at Arnold & Smith, PLLC in Monroe, North Carolina at 704.370.2828. We can help you understand if you have the legal right to modify a custody plan to your benefit. Contact us by phone or online today for your free consultation.