Know the Laws: North Carolina

UPDATED February 23, 2010

This page addresses the general (not state-specific) laws of one parent taking a child out of the state or country, without the other parent's consent.

• The other parent wants to take my children out of the state. What can I do?
• I want to take my children out of the state. Can I?
  • Can I get temporary emergency custody?
  • Can I take my children out of the state?
  • If I take the children out of state without the consent of the other parent, can I be charged with kidnapping?
  • If there is a custody order in place, can I take my children out of the state?
  • If there is some court action involving my children, can I take them out of the state?
  • I've got all this information now, but I still don't know what to do.

I want to take my children out of the state. Can I?

back to topCan I get temporary emergency custody?

If you are applying in a state where you and the child have recently arrived:
Under a law called the UCCJEA, you can apply for temporary emergency custody in a state that is NOT the "home state" of the child if the child, a sibling, or parent (including you) are in danger.  You and the child have to be present in the state that you are filing for emergency custody in.  (Note: Every state follows the UCCJEA except for MA, VT, and NH but NH will begin to follow it on 12/1/10.*  If you live in one of those 3 states, which follow a different law called the UCCJA, emergency custody may only be granted if the child (not a parent or sibling) is in danger.)

We strongly recommend that you talk to a lawyer who specializes in domestic violence and custody issues about your situation before leaving the state if at all possible.  To find one in your area, please click the Where to Find Help tab at the top of this page.

If you are granted emergency custody, the order would likely be what is called an "ex parte" order since the other parent would not be present in court.  Ex parte orders are generally good for a short period of time until a return court date where both parents are present in court before the judge.  Note: If a custody order already exists in State A and you are getting an emergency custody order in State B, the emergency order would only last for enough time to allow you to go back to State A and change that existing order. 

If you are applying in the child's "home state":
You may request temporary custody (or emergency custody) if you are filing for custody in the child's "home state," which is the state where the child has lived for the past 6 months.  Depending on your state, you may be able to request temporary emergency custody as part of a regular custody petition or there may be additional forms you need to file.  You may or may not have to prove that the child is in danger in order to get emergency custody.  However, you still may not be able to take your child out of the state even if you have temporary custody - it depends on what the order says.  If you know you are planning to leave the state, you might want to ask the judge to include permission for you to leave the state in the custody order.  It is up to the judge to decide.

* This information is current as of September 1, 2009 but this may change as time passes.  See en.wikipedia.org/wiki/Uniform_Child_Custody_Jurisdiction_And_Enforcement_Act   You can ask a lawyer in your state for more information.

back to topCan I take my children out of the state?

In some states, if you take your children out of state, you could be at risk of being charged with kidnapping or with "custodial interference."

Parental kidnapping, or custodial interference, is governed by state law, and the rules are different in each state. Please talk to an expert in your state who understands domestic violence and criminal laws to determine what your state's laws are and how they might apply to your situation.

In some states, if there is no custody order in place and no pending court action that has to do with the children, either parent can take the children out of the state temporarily.  In other states, even if there is no custody order in place, you may be violating a criminal law by traveling out of state with the children without telling the other parent.

You can get more information about a particular state by contacting a lawyer or domestic violence agency in that state. Please click on the Where to Find Help tab at the top of this page.

If you have been charged or fear being charged with one of these crimes, please let us know and we will get you in touch with an organization that can help you.

Depending on your situation, you may also want to apply for temporary emergency custody. Please see the question above Can I get temporary emergency custody?

back to topIf I take the children out of state without the consent of the other parent, can I be charged with kidnapping?

Parental kidnapping is governed by state law, and the rules are different in each state.

In some states, if you are fleeing a pattern of domestic violence or to protect a child, then you may have an exemption or an "affirmative defense" to the charge of parental kidnapping.  That means that if you are charged with kidnapping, you can plead "not guilty," and, if you have enough evidence to prove the defense, you might be able to avoid being convicted.  Evidence of domestic violence or child abuse could include proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that you have seen a counselor and tried to get help, testimony from family, friends, or other witnesses, or anything that is evidence of an ongoing abusive relationship.

In some states, there are conditions you need to meet BEFORE you flee to take advantage of these legal protections.

If you are fleeing domestic violence or to protect your children, then either way, it is a good idea to collect evidence before you leave, if at all possible.

If you do take your kids out of the state and are charged with kidnapping, you or your lawyer can Contact Us and we can refer you to experts who can assist you.  Be sure to tell us that you have been charged with the crime of kidnapping or custodial interference.

We strongly recommend that you talk to a lawyer who understands domestic violence and your state's criminal laws before you make a decision.  A lawyer can help you put together the necessary evidence.

Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody?

back to topIf there is a custody order in place, can I take my children out of the state?

Again, parental kidnapping is governed by state law, and the rules are different in each state.

Generally, if there is already a custody order in place for your children, it is more difficult to leave the state, especially if leaving would interfere with the other parent's visitation with the child.  You could be more likely to be charged with parental kidnapping or custodial interference if you violate a custody order - and you could also be held in contempt of court and risk losing custody if you violate the custody order.  You should talk to a lawyer about whether your custody order and/or your state's law include any protections for people in your situation.

Generally, if there is already a custody order in place, then both parents have to abide by that, whatever it says.  If you want to do something different than what is in the order, you probably need to get permission from the judge.  There may be other protections in your state that allow you to take your children out of state, even if the custody order doesn't appear to permit it.

Please talk to a lawyer in your state, or call an advocate who can help you find legal assistance. Please click on the Where to Find Help tab at the top of this page.

back to topIf there is some court action involving my children, can I take them out of the state?

If there is some court action involving the children (divorce, custody, visitation, child support, etc.) that is in process, then it may be illegal for you to take the children out of state, even temporarily, without permission from the judge and/or consent of the other parent.  If you have a current court action of this sort, then you should ask the judge if you can take the children out of the state.

Also, keep in mind that once a court action is started in one state, then that state court generally has jurisdiction over the case until it is finished.  Sometimes you can move the case to another state, but it is often really hard to do. If you want to move your case to another state, you'll need to talk to your lawyer about that.

back to topI've got all this information now, but I still don't know what to do.

There is always a potential risk of taking your children out of the state.  Weighing this risk will depend on the circumstances of your personal situation and on how you feel about taking that risk.  WomensLaw.org strongly recommends that you talk to someone in a local domestic violence agency and a lawyer to help you with this decision, if you have not already.

Remember, the information on this page is just general information. Your state may have differing laws or other things you can do.

You may also want to check your state's pages on this site for additional information.

To find a local agency or someone who can help you, click on the Where to Find Help tab at the top of this page.

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