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Out-of-State Custody Orders and Jurisdiction for Modifications

Deciding to relocate with children is not always easy, as numerous factors must be considered. Divorced, separated, or unmarried parents with custody orders have additional considerations they must think about both before and after they move.

Out-of-State Orders in North Carolina

If you’ve recently moved to North Carolina and have a custody order from another state, it is likely that the order will need to be modified to accommodate the change in circumstances.[1] Which court will have jurisdiction over the modification, the court that entered the order or a North Carolina court?

Generally, North Carolina courts are able to modify custody orders from other states if the child and their parent reside in North Carolina. [2] This can get complicated when there are multiple moves involved or when parents live in two different states. Consulting with a Greensboro divorce lawyer is a good idea if you or the other parent have recently relocated.

Despite the likelihood that an out-of-state order will need to be modified after a major move, the terms in the order are still binding and enforceable in North Carolina. Each party must still abide by the existing order until a judge is able to decide on necessary modifications.

Malone-Pass v. Shultz

In the case of Malone-Pass v. Shultz,[3] Mother lost her visitation because she filed a fraudulent protective order in an effort to circumvent the custody order. The parties’ original custody order was entered in New York, granting Father primary physical custody with visitation for Mother. The parties moved to North Carolina, and visitation schedules were established for Mother following this relocation.

Shortly after the move to North Carolina, Father relocated to South Carolina with the children, and Mother moved to Massachusetts. Mother obtained a domestic violence protective order in Massachusetts based on fraudulent claims, and she was granted emergency temporary custody of the children, allowing her to take them from Father’s home in South Carolina. In response, Father filed an emergency motion to suspend Mother’s visitation in North Carolina court. It was found that Mother had lied to obtain emergency custody, so the protective order was dissolved, and Father regained custody.

An in-chambers meeting was held in the North Carolina court with the children, and Mother disobeyed orders from the court not to discuss this meeting with the children. All of these incidents led to Father being granted sole legal and physical custody and Mother being denied visitation, which she appealed.

One part of the basis of her appeal was that North Carolina did not have subject matter jurisdiction. The Court of Appeals upheld the lower court’s ruling, but why did North Carolina have jurisdiction when neither parent lived in the state at the time of the ruling? Because the children lived in North Carolina at the commencement of the proceedings, and New York, the original venue for the custody order, had relinquished jurisdiction. Further, state law allows North Carolina to have jurisdiction if a state court is the most convenient forum.

Multiple moves across state lines can create complicated custody arrangements. Contact the Woodruff Family Law Group to speak with a Greensboro divorce lawyer who can help you navigate out-of-state custody orders and relocation.

[1] N.C.G.S. § 50-13.7

[2] N.C.G.S. § 50A-203

[3] Malone-Pass v. Schultz, 280 N.C. App. 449, 868 S.E.2d 327.