I have sole physical custody pursuant to a Separation Agreement that has been in place for 5 years. My husband filed for divorce

Your Agreement might have a provision that addresses relocation. If it does, that provision might require that you obtain your soon to be ex's permission or permission from the court prior to any relocation. So, you should first review all of the terms of the Agreement to see what it says. Even if your Agreement is silent on this issue, if you just up and move to NC, your soon to be ex could then seek custody in NY and/or an order compelling you to return son to NY. NY is the only state that can issue a custody order right now because NY is your son's home state. NC does not have any authority on this issue because your son has not lived in NC for the past six months. Relocation cases are very difficult for our clients and for the court system. There are no easy compromises and one parent will win and one parent will lose. To maximize your likelihood of winning permission to relocate, you should consult with an attorney and carefully plan out your case. If you would like to discuss this matter further, please contact me to schedule a consultation. Jean M. Mahserjian 518-383-1182 [email protected] I hope you found this answer helpful and if so, please let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It's easy and appreciated. You can also choose a "best answer" if you wish. This is easy to do and greatly appreciated.

You need either his permission or court permission. You can file a motion within the divorce requesting to relocate to North Carolina. Be prepared to have a parenting time plan in place and explain to the court how you child(ren)'s life will be improved by the move-financially, educationally and emotionally. If you don't have an attorney, I highly suggest consulting with an attorney to determine the best way to present your case.

You would not be subject to abduction cahrges. However, as part of the divorce your hasband can request that the court order that the children remain in NY. The best course of action is to file for relocation with the children as part of the divorce action. Discuss this with your divorce attornei. I hope you found this answer helpful and if so, please let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated. You can also choose a "best answer" if you wish. This is easy to do and greatly appreciated. * This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy.

I agree with Ms. Mahserjian's wise counsel. Unfortunately, the concept of the existing "joint custody" means your soon to be ex has shared decision making over things as serious as one parent's relocation which would affect the NCP's rights to reasonable visitation and having a deep relationship with the child. Since he has already brought a petition to seek physical custody, that forum will be where all issues regarding primary physical custody will be adjudicated and decided, depending on what is viewed to be in the best interests of the child, including your relocation and new job and whether he will have a better home if you move and keep custody because of that. It's a common allegation that the NCP is seeking custody primarily to avoid support, and isn't given much credence. But it's certainly germane why you have been custodial parent for years and there's no need to disturb that arrangement. If you have creative solutions for visitation (e.g., longer stays with dad in NY over summer and long vacations, that would be a plus. The law guardian's opinion will be heavily weighed, especially if the child is older. And lastly, it would help in this kind of difficult contested case to be represented by an experienced family law attorney to help you. Best of luck to you!

I am unclear on your question. You mention a separation agreement, and a divorce. Did you sign a separation agreement and never complete a dissolution or divorce at that time. A separation agreement, absent it being referenced in a journal entry and signed by the judge is fairly worthless in my home state. I do not practice in NY, nor am I licensed in NY. So IF a divorce is pending now, you cannot move without a court order allowing the same. Good luck.

Does your SA permit a relocation? Having sole physical custody, if he has parenting time, does not mean that you can move. To the extent that he has parenting time with the children and moving out of state will divest him of his time with them, you will need his consent. If you and he are not able to consent, you will have to file a petition requesting court approval for the relocation. If you leave without the father’s permission or court approval, this could cause significant problems for you, including, but not limited to the potential loss of physical custody of the child. You are likely to be granted a relocation proposal if it is submitted in good faith and supported by legitimate and sound reasons. Remarriage, career or educational opportunities are the most frequent reasons advanced by the parent seeking the relocation. The court must also find that the move is in the child's best interests. The parent moving away should always try to work out alternative visitation or custody arrangements that meet the needs of both the child and the other parent. A relocation case is very "fact sensitive" so each case must be considered on its own facts and merits. Factors the Courts will often take into consideration include the following: 1. The good faith of the parents in requesting or opposing the move. 2. The child's respective attachments to the custodial and non-custodial parent. 3. The possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent-child relationship. 4. The quality of the lifestyle that the child would have if the proposed move were permitted or denied. 5. The negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parents. 6. The effect that the move may have on any extended-family relationships. 7. The economic necessity of the move. 8. Any specific health-related concern for the move. 9. The demands of a second marriage. 10. The custodial parent's opportunity to improve his or her economic situation. Relocation applications, much like any custody matter, will most often require the appointment of an attorney for the child, who will represent their interest and will be required to advise the Court of the child's wishes. Relocation cases may also require home studies and forensic evaluation by a mental health professional, as well as, an eventual trial.