Moving a Child Out of State During Separation

by Stephanie Mayberry
Children are the smallest victims of divorce.

Children are the smallest victims of divorce.

Divorce is never easy, but when you add children into the mix, it can quickly become very complicated. Custody can be a touchy situation and one violation of the other parent's rights or disregard for judgments can result in significant legal issues, including loss of custody and even jail time. Removing a child from his state of residence during separation or divorce proceedings is a sensitive issue and certain considerations must be weighed in order to determine the best course of action.

Are you the custodial or non-custodial parent? If you were not awarded custody, chances are slim that you will be allowed to move your child out of state during your separation. If you have full custody or joint custody, there are other factors that can make it easier or more difficult. For instance, do you have permanent custody or is it temporary? Often custody is temporarily awarded to one parent until the official custody hearing, which can be held either before or after the divorce.

If you have joint custody, are you the domicilary parent? In other words, does your child live with you full time or most of the time? If the child lives with you full time, then you may have a better chance of convincing a judge to allow you to take the child out of the state (provided there are no restrictions in any judgments regarding the children).

What do the judgments and custody papers from your separation, custody hearing and divorce petition say? Read all of your court documents carefully. What does the latest judgment say regarding the child? Some judges will not allow a child to be moved outside of the county of residence, much less the state, until after custody is finalized. Other judges do not put this stipulation into their judgments. There are many factors at play that would lead a judge to take these actions. You just have to read your paperwork.

What does your attorney advise? Get sound legal advice from your attorney regarding whether or not you are legally able to move your child from the state of residence. They can review your court documents and interpret the language as well as advise you of your rights as a parent. If your attorney says stay, though, it is probably best that you heed his advice. It is better to stay put than to wind up with a warrant for your arrest for contempt of court.

How does the non-custodial parent feel about it? If you are able to discuss the move with your ex, it is a good idea to find out how he feels about it. Some ex-spouses are supportive, particularly in cases where the custodial parent is moving to take a better paying job or moving to a safer area. If you can work it out, make certain that both of you do everything in your power to facilitate your relationship with your child. Your child needs both of you so make sure that you work out the logistics for visitation.

What does the child have to say about it? In the end, you have to consider the impact this decision will have on the children. They are likely already hurting from the split, but to add to the stress of moving them away from the non-custodial parent could cause more trauma. It is natural to want to move away and start your life over, but your life isn't your own anymore. You have a child for whom you are responsible -- for whom you both are responsible. Find out what the child wants and strongly consider what is best for her.

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