Relocation And Child CustodyThe following issues relating to relocation and child custody often come up for divorce parents who face the aspect of moving not only to a different city, but sometimes to a different state.
Topic: How do I get custody modified to allow relocation? Heather's Question: It states in the divorce that I have to stay in the school system that the kids are currently in, but I can no longer afford to stay in this area. What do I need to do to have the agreement modified and be able to move? Brette's Answer: You either need to get your ex to agree and sign a stipulation which is then submitted to the court, or you need to file a petition to begin a court proceeding and ask the judge to modify your existing custody order. You will also need to lay out your plan for visitation after the move. Good luck! » Return to top What factors does the court consider for allowing a relocation? Annie's Question: My ex and I both have shared custody of our 4 year old son. I am planning on moving out of the state sometime later this year. How do I go about that and how soon? What reasons will the court look for allowing me to take my son with me? Brette's Answer: First you should talk with your ex to see if you can reach an agreement. That would be the best way to go about this. Work out how he would have time with your son. If you can get him to agree, it won't be a problem. If not, you will have to go to court and will need to show the relocation is in your son's best interest. You should talk with an attorney about how courts in your state consider this decision, but in general, the court will look at how the move will improve your family's situation - this could include having a better job, having more family support, entering a stable relationship, and more. How can I give him notice if I don't know when I'll move? Jodi's Question: My x-husband and I already live in two separate states and have worked out visitation. I want to move to another state to be closer to family. Our court papers say I have to give him 60 day notice. I have no idea when my home will sale, so how can I give him 60 day notice? Should I just send a general letter stating I will be relocating the child at some point? Brette's Answer: Since you are able to work things out on your own, can't you work out this notice requirement as well? You can give him a letter stating your intention to move but also saying that you cannot give an exact date until your home sells at which point you will give him an exact date as soon as you can. It doesn't sound like he will have a problem with that if he is able to agree to visitation with you. It sounds like you have a good relationship, so just try to continue in that spirit by giving him as much notice as possible in as polite a way as possible. » Return to top What can I do if he moved away with the kids without telling me? Britney's Question: My husband filed for divorce in Texas. I have visitation, but I just found out that he took the kids and moved to Seattle without telling me. The divorce isn't even final. What can I do? Can he keep my kids legally? What if he drops the divorce? Brette's Answer: You need to file an emergency petition. Talk to the court clerk and ask what form to use. You want an injunction forbidding him from leaving the state. If he tries to withdraw the divorce, you file a cross-petition. It would help to get an attorney. Can I stop him from moving away with our kids? Holly's Question: My husband has sole custody of the three children. Once the divorce was final, I found out he married his old girlfriend. Now he wants to move the three children to NM with his new wife. Can he move my kids to another state? His new wife sent me an email stating I would not be allowed on base in NM to see my kids in their new home on base. She is trying to pose alienation and interference with visitation with my children. Please provide any information you may have for me. Brette's Answer: If you have visitation rights, he cannot move without court permission. You can file a petition in your state family court seeking to prevent the move. He has to show that the move would be in the best interest of the children and that you would have access that will continue your relationship. An email from the new wife stating you will be denied access is important and could be of great help to your case in preventing the move. » Return to top Can the grandparents stop me from moving away? Kimberly's Question: Can I leave the state if my ex husband has been in prison for 9 years since our son was 4 months old? The divorce was defaulted on his part, so he has no visitation, custody etc. His parents are involved and might put up a fight. I don't mind giving them visitations a few times a year. They have him every other weekend and have always been helpful with school clothes. What can they lawfully do to me? Brette's Answer: Try to work something out with the grandparents first. If you can't, they may sue for grandparent visitation. It sounds as though you have a reasonable relationship with them, and if you make it clear that you want your son to continue having contact, they should work with you. Topic: Relocation during separation Maureen's Question: My daughter is married with a 6 month old daughter. Her husband is addicted to drugs and they are now separated. Is she allowed to move back home (to another state) with the baby? Brette's Answer: Until there is a custody case, both parents have equal rights to a child. I would not recommend that your daughter simply disappear with the child though, however, she should let her husband know where she will be. I can understand that she probably does not want the child to have contact with him while he is addicted, however, she should encourage him to get straight (I'm sure she already has), and then plan to work out visitation in the future. At some point she's going to need to get formal legal custody though. I would recommend she talk to an attorney as soon as possible about her situation. Good luck to her. Can he make me move back after so long? Colleen's Question: My husband and I separated five months ago, and I moved 3 1/2 hours away to live with my mother. He has a real problem with how far a drive it is every other weekend. Can he make me move closer through a court order? Brette's Answer: He can try, but the fact that he's put up with it for so long is a strike against him. The court will evaluate whether the move was best for the kids. In most cases it's not best to uproot them yet again. Topic: Moving away before starting a divorce Daniele's Question: I would like to get a divorce. We have twin girls and I would like to move to another county which is about 2.5 hours away from where the children's father and I presently live. Can I do this and then start the divorce procedure? The move would be permanent as this is my starting over in a new community. My reasons for looking so far is that this is the only place that I can afford the rent and the atmosphere of the city is much more calm than where we presently live. Legally, can I do that and perhaps advise the PD in the city where I am presently that I am relocating and there is no need for a missing persons report as my husband will contact them saying that the girls and I are missing. Brette's Answer: Moving to another county should not be a problem, as long as you arrange visitation. You should go to court and get a temporary order of custody to get things started. I'm a bit disturbed by the suggestion that you're going to pack up and leave without telling your spouse. There are definitely some situations where this is warranted - if you are in danger or afraid. In other situations though this could be detrimental to your desire to obtain custody. You should talk to an attorney and get some guidance on how to handle this situation. Good luck. » Return to top Can he take the kids and move before the divorce is filed? Amanda's Question: Can a spouse take children out of state before the divorce is filed? if so what can I do to stop it? Brette's Answer: Yes, if there is no case in progress, you both have equal rights to the children. If you want to stop it, file a petition in family court for temporary custody with a provision that the children are not to be taken out of state. Can I move away once the divorce has started? Angel's Question: I just got served with divorce papers, and I want to move out of state. Now he is trying to tell me that I can't move out of town with my daughter. Can I leave the state while being served with divorce papers? Brette's Answer: Get a lawyer. You cannot leave during a pending proceeding without permission of the court. Good luck. Can I move if there isn't a relocation clause in our divorce? Malla's Question: I have sole legal and physical custody of my 10 year old and 5 year old. I will be looking to relocate sometime within the year as I am getting married again to a man that lives in another state. There is no stipulation in my divorce decree stating that I cannot move, but their father does have visitation every other weekend. Can my ex stop me from moving? Brette's Answer: He can stop you if he files a petition to prevent it and the court agrees. The first thing to do is try to work this out with your ex. Try to find a way to make visitation happen on some kind of regular basis and make plans for contact by phone, email, etc in between. If you can get him to agree, all you have to do is submit a stipulation to the court with the change in plans. If he won't agree, you need to go to court to get permission to move and to change the order. Topic: Relocation clause in divorce Kori's Question: I am wanting to leave the state that I am residing in but want to make sure that I will not have problems moving out of state with my child. What needs to be included in my divorce papers addressing this? Brette's Answer: You need to talk to your attorney about this. It is possible to include a relocation clause, but usually relocation is determined at the time it becomes an issue, when the location and the details are known. » Return to top Can I leave if we were never married? Erika's Question: My daughter's father and I were never married, and don't have court-ordered custody arrangements. We came to an agreement on our own and have been doing 50/50 for the past 5 years. She is now 5 1/2, and I am wanting to move to another state. If I decided to pick up and move with her, how much trouble could I get in? If I did decide to go to court and fight for custody, what are my chances of winning? My lawyers told me that the judge wouldn't change her life, since it's all she has known, but I want to move now. Brette's Answer: If you just pick up and leave he can get a temporary order restraining you from leaving and giving him temporary custody. Just leaving without working out a plan for visitation is custodial interference - how will your daughter have a relationship with him in those circumstances? If you can't work something out with him, you will need to go back to court. You could propose allowing her to spend a month with him in the summer and a week at Christmas or Easter as well as visitation any time he can get to your area. You need to be prepared to show the court that the move is best for your daughter and will result in more stability or a better lifestyle. You also must show that you are willing to arrange visitation for her. » Return to top Can I move if his name isn't on the birth certificate? Metra's Question: I had my baby 3 weeks ago, and her dad's name is not on the birth certificate. We aren't married and he has never been around or helped. I am planning to relocate 2 hours away from where the baby was born. Do I need a court order to move? Can he stop me from moving? Brette's Answer: No, right now he can do nothing. He would need to commence a paternity case before he would have any rights. Can I move if there are no custody arrangements in the decree? Amanda's Question: I had an uncontested divorce that states "there were no children born of the marriage". Since we have no custody arrangements in writing (but I do have the kids 90% of the time), can I legally take the children and move to another state? Brette's Answer: That phrase is used when there are no children. If you are saying you do have children together, then there was an error and you need to get it fixed. If there is no custody order, you technically can leave, but you're going to have a problem if he files to prevent the move or to seek custody after the move. Picking up and moving without making arrangements for visitation will not reflect well upon you in the eyes of the court. Moving away when you have sole custody Nancy's Question: I have sole legal custody, and my ex only gets visitation and not shared legal custody. Can I move away if I choose? Brette's Answer: If you ex has visitation rights, but not shared legal custody, he still has parental rights. If the move will infringe on his visitation (make it harder), you will need to get court approval to move. You need to prove this is in the best interest of your child and show how your ex can continue to have visitation and a relationship. See an attorney to discuss your state's rules. » Return to top Can he stop me from moving out of the country if I have sole custody? Anna's Question: I already have a sole custody of my son. I do not want to live in USA anymore and want to go live with my family in Europe. I got a very good job here and my family can watch my son while I am at work. Can my ex-husband stop me somehow from moving? Brette's Answer: Yes. You need to try to work this out or get an attorney who can help you. Can I move if I have full custody and he isn't part of my child's life? Jenny's Question: I currently have full/sole custody of my daughter. My ex has had no part in her life since she was 1 1/2. I have a job transfer to another state in a month. Is there anything I need to do legally to move? I have informed my ex and given him our new address to send child support payments to. Brette's Answer: Full and sole mean the same thing. If there is no visitation at all, moving should not be a problem since it will not impact the father's access. Can I move if he will be in prison for 5 years? Amber's Question: I have sole physical custody and we have joint legal custody. Can I move out of state without his permission if he is incarcerated in a prison for 5 years? Brette's Answer: It depends on what the visitation schedule is and whether he will want to continue it. » Return to top Topic: Joint Custody Parent Relocation Tracey's Question: I have joint custody of my children and their Dad is trying to move out of state. He has not paid child support in 5 months, and has violated the custody order by not picking them up on his assigned week. He is not working anything out with me and I don't know the address where he will be going. He is not expected to take any children with him when he moves. What steps can I take to prevent him from moving out of state Brette's Answer: If he doesn't want to take the kids or have visitation in the new state, you can't prevent him from moving. You can take him in on a child support violation though. It's a shame he is not planning to use his visitation. I hope you can work something out so that he maintains contact with them and has some visitation. It's really important that they spend time with him. » Return to top Topic: Relocating to an nearby town Melanie's Question: My ex-husband and I share joint custody of our 3 children. In my final decree it states that each party is to live in the town we lived in when we were married. I am planning on moving about 25 minutes away, which would mean that my daughter has to change schools. If we have a trial what are the chances of me winning? Brette's Answer: You shouldn't have to have a trial. 25 minutes should be insignificant and there's no reason you can't reach a settlement. Should you go to trial, I can't see how it would be a problem, unless you have an arrangement that requires you to bounce the kids back and forth every day or every other day. Would a judge approve a relocation if it was only a short distance? Rebecca's Question: Will the court consider allowing a mother and her new husband to purchase a house in another county about 52 miles from the father (in a different school district)? Brette's Answer: This certainly sounds reasonable and since it would be about an hour's travel time, it shouldn't impact visitation too heavily. The only objection he might have is the change in school district. He can file a petition to prevent your move, but should that happen, it sounds as though you are in a good position. The court may or may not consider it to be a request for true relocation - it may depend on whether it is in the same jurisdiction. Your chances are good though. » Return to top Can I relocate if my ex doesn't even live in the current school district? Cindy's Question: My ex and I have joint legal custody and share physical custody equally. My son is 14 and attends school in the district in which I live. My ex has never lived in this district and moves frequently. I need to move in with my long term boyfriend (for financial reasons), who lives in a different school district. My son is opposed to switching school districts. Can my ex or my son force me to stay in the district? He is going from jr. high to high school so this is the 'best' time to make the move. Brette's Answer: It sounds to me as though the move should not be a problem as long as your ex can still visit. There's no imperative that you stay in the same school district. Families move all the time. Your son might not be thrilled, but simply because you're divorced he doesn't get to choose where you and he will live. You're the parent and you are the one who makes these decisions. Good luck. Would I be allowed to move if we already live far apart? Robin's Question: We divorced in Louisiana, and he moved to Tennessee. I have physical custody and moved to Alabama after the hurricane. I am ready to move back to Louisiana and was told that he couldn't stop me from moving since we live in different state. Is that true? Brette's Answer: It sounds like a move would have no impact on your visitation - you would still be about as far apart. Generally you need permission to move when doing so changes the situation. In your case, it wouldn't. Can the relocation restriction be modified if he violated the restraining order? Kasandra's Question: My Ex-husband broke the protective order I had against him and is now going to jail for 6 months. Is this grounds for me to modify the divorce to move out of state? My family lives in another state and I would be safer there. I also have a job waiting for me there. Brette's Answer: I'm assuming you're referring to the custody portion of the order which prevents you from relocating. It sounds like you have a strong argument to relocate at this point. Good luck. » Return to top Do I need to do anything else if my ex gives me permission to move? Tiffany's Question: I have sole custody and want to move out of state with our 2 children. My ex and I have have always been civil, and he given me a signed and notarized letter saying that we can move. Do I need to do anything else? Brette's Answer: You should consult with an attorney to make sure you comply with your state laws. You may need to go to court and sign a stipulation which will be approved by the court. Good luck. » Return to top Would a judge overrule my husband's consent to move with the kids? Yana's Question: My husband agrees to sign a consent for me to move out of state with our two children, but says when the papers go through court the judge may alter this decision even if we both agree that it's better for me and the children to move out of state. Is that true? Brette's Answer: Yes it is true, however it is very rare that a judge would not rubberstamp a reasonable decision that is mutually agreed upon. It would only happen if the judge felt there was some inequity happening, or if he/she believed the decision was not in the best interests of the children. In general, it's nothing to worry about. Could he stop me from moving if the relocation clause allows it? Tessa's Question: I have sole custody of my 7 year old son. I want to relocate to where my mother lives, which is about 5 1/2 hours from my ex. It says in my divorce decree that I can move to where my mom lives. Since the divorce was default and he has not complied and I have sole custody, can I move or do I still need a court order? Brette's Answer: If the order says you can move there then you don't need a separate order saying so. What if the grandparents don't approve of the relocation? Erin's Question: My ex and I have joint custody of our son, with me having primary placement. I am planning on moving to another state, and my ex has no problem with me leaving. Unfortunately, his parents are putting up a fight. I am more than willing to allow very acceptable visitation to them, such as spending Christmas and one month during the summer with them. I am even willing to pay to transport my son there. My ex mother-in-law is telling me that I can leave, but that my son needs to stay with her. What can I expect legally from the Grandparents out of the situation? Brette's Answer: If the father has no objections you should be able to go. They can file a petition for grandparent visitation but they certainly have no right to custody. You have a plan in place for very reasonable visitation - it should be fine. Why not have the father try to talk to them since he is ok with the move? Will I have to move back if he says he didn't give consent? Arica's Question: My husband and I have been divorced since 2002. He filed a motion to prevent relocation in 2004. We then came up with an agreement where he allowed me to move, and I relocated with his permission in 2004. Now three years later he is saying he didn't consent. Will I have to move back? Brette's Answer: I'm unclear as to what documents were entered into the court. If it is a court document, he cannot undo his consent now. If this was a verbal agreement you had with him, you would need to try to offer some proof of this. Waiting three years to protest a relocation is pretty ridiculous and I doubt the court will give it a lot of merit. » Return to top Will I get in trouble if I move after he gets a temporary order? Forever's Question: I have Sole custody and have told the father that I am moving out of state and that I would still work with him on visitation of the children. He waited until the last minute of my moving day to file a temporary order of me not taking my kids with me out of state. Can he get me in trouble for leaving the state? Brette's Answer: It depends on what your current order says. If it says you can't leave without permission, you have a problem. If it just gives him visitation, you aren't technically in violation of that until visitation is missed. What happens if I move without his permission? Tiffany's Question: In the divorce papers it says I can't move out of the state without my ex's permission. If I move without his permission, what can he do? Brette's Answer: If you don't get him to agree and just go ahead and move, it is in violation of the order and is essentially parental kidnapping. You've got to find a way to get him to agree, or you need to go to court and ask for a change. You can go to family court without an attorney and ask for a change. » Return to top Topic: What if he won't allow me to move? Julie's Question: Our custody orders from 2003 indicated that neither parent can move out of the county. I have since acquired a new job 86 miles away, rented a house near a elementary school and found out my ex WILL not allow ME to move without the children or without court orders. I have filed ex parte action and am concerned, being in "proper" that I might have holes when presenting my side. What are your suggestions? Brette's Answer: The case is going to revolve around the best interests of the children. You need to show the court how much this will benefit your children. You also need to show your commitment to visitation, and present a plan for you can make sure your ex has enough contact with the children. This might mean longer periods of visitation over the summer and holidays. Good luck. Topic: Joint custody and moving out of state Rose's Question: My ex and I have joint custody and for now our child lives with both of us. I recently remarried this year and want to move to another state for a better paying job. My ex is unsure about the move because he feels he's been as much of a parent as I have and he wants to be there for our son. Can my ex lose if I fight him on this? Brette's Answer: Relocating is a difficult thing for divorced parents. On the one hand, you need to do what is right for you and your family, yet on the other hand, you have a responsibility to make sure your child spends time with the other parent. I would suggest you and your ex try to talk this out. Can you create a plan that will let him have extended time with your child over the summer? Maybe he could come and visit her for long weekends? See what you can work out. You might also want to see a mediator who could help you come up with solutions that don't immediately occur to you. If you go to court about this, it will be difficult. The court will have to weigh what is best for your child and will look at how much time your ex has spent with her in the past and what their relationship is like. Is primary custody affected if my son lives with my mom when I move? Adrianna's Question: I will be going to college full time this fall to finish my BA in another state, which is only 90 miles from where I live now. I want to move to one of the counties that boarder that state so I can get residential tuition next year. Since my son is already in Headstart, can I move and leave him with my mother Monday-Wednesday, since his fathers visitation is Wed-Sat every week? Will I still be the Primary custodian? Brette's Answer: If you do this, your son's father could ask the court to give him residential custody. Courts prefer that a child be with a parent when possible. If you decide to move and take your son with you, but plan to continue the visitation schedule it should not be a problem - however moving out of state can be an issue, no matter how close it is. I would suggest you talk to an attorney in your area to get some detailed information about your state laws. Topic: Temporary relocation after divorce Sarah's Question: I am remarried and have sole custody of my 5 year old from my previous marriage. My new husband has an out of state internship offer for the summer that will last for 8 weeks, and I'm obviously planning on going with him. Can I take my 5 year old without much hassle from the courts if my ex is against it. And how would I do this? Brette's Answer: You should first talk to your ex about the situation. What can you do to make arrangements for him to see his child at some point while you are gone? See what you can work out together. Approach it with the attitude of finding a mutually agreeable solution. If he will not agree, you can either go to mediation or to court. Since this is a temporary relocation, it is likely a court would allow you to go, but might require you to travel back with the child once for visitation. Try to work this out on your own first if at all possible. Good luck.
Related Articles: Brette Sember is a former family and matrimonial attorney and mediator, nationally recognized expert, and author of many books including The Divorce Organizer & Planner, No-Fight Divorce, and How To Parent With Your Ex. This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce Process / Children and Divorce/ Emotions and Divorce Divorce Home / Divorce Guide / State Resources / Divorce FAQS
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