Can a custodial parent move a child out of state?
Child custody and moving to a new state
Divorce is difficult, especially if you have children. Following a divorce, however, most parents want to be as involved in their children’s lives as possible. This can be become more difficult, however, if one parent decides to move to another city or state. Recently on our forum a user asked, “If my wife has primary custody of my child is she allowed to move out of state?”
Existing custody order and moving to a new state
Although state laws vary, if you have a child custody order which has awarded joint legal custody or joint managing conservatorship to both parent this means that both parents have the right to make important decisions about the child, including where the child will live.
One parent is also generally designated as the primary parent and their home will become the child’s primary residence. Further details in the court order, however, generally detail the geographic area where the primary parent must live.
If the primary parent wants to move out of state with a child and their custody agreement limits their movement, they need to request a modification custody order from the court. They cannot simply take their child and leave the state.
Custody order does not restrict movement of the child
In some cases, however, a custody order may not contain specific language which limits a parent from moving with their child. In this case, the custody parent may have the legal right to move, but the other parent also has the right to challenge it.
If your ex-wife is trying to move with your child and a move is not strictly forbidden by the custody agreement, you will need to file for a temporary restraining order. A hearing will be scheduled, and you will be allowed to challenge the move. It will be up to your ex-wife to prove the move is in the best interest of the child or there is a compelling reason she has to move.
What if my ex moves without modifying the child custody agreement?
Certain states have very strict statutes regulating the ability of a parent to relocate with a child. In these state, if a parent moves out of state without legally modifying the custody agreement the state will consider this a violation of the order. Penalties can vary by state but could include a contempt of court charge, fines, sanctions, and paying the attorney’s fees of the opposing parent. The parent who moved the child may also be compelled to return the child to their home state.
Other states do not have these statutes. For more information about your legal rights in your state you will need to review your state’s laws and speak to a family law attorney.
No child custody arrangement for a child
Whether or not a parent can move a child out of state against the other parent’s wishes if there is not a child custody arrangement may depend on state laws. Some states have laws that the custodial parent has the right to move and will require the non-custodial parent to prove it is not in the best interest of the child. Other states do not make this assumption and blocking a move is much less difficult for the non-custodial parent. Talk to a family law attorney if you have questions.
Category: Family Law