Regardless of whether you are already divorced or are somewhere in the divorce process, it’s important to understand the legal implications behind moving with your child. The first thing to pay attention to is the status of the different custodies.
There are two types of custody: physical and legal. Physical custody refers to where the child lives. Legal custody is the right to make important decisions about the child’s health, education, and welfare. Both will be specified in the custody arrangement.
Can I move with my child?
A simple question with a multitude of answers, depending on where you are moving to, what your relationship is with the other parent, and how your child custody agreement reads.
Moving with my child before a divorce.
If you are married and decide to move with the children, the court won’t step in unless the other parent files an action. After all, both parents have custody at this point, so it is legal for one parent to move with the children.
However, if you’re planning on getting a divorce, you are best off getting some form of written consent from the other parent before you move with the children. If you don’t and the other parent files an action, the court may order you to return the children to the other parent. The court also may look at your actions unfavorably when it comes to determining custody and visitation arrangements in the future.
If you are considering relocating so you can file for divorce in a different state, bear in mind that most states require a period of residency before you can file for divorce in that state. The Uniform Child Custody Jurisdiction and Enforcement Act prohibits parents from filing for an initial custody determination outside of their home state. A home state is defined as the state where the child resided for the six months prior to the commencement of the custody proceeding. Unless there are extenuating circumstances, such as safety reasons, it’s likely you’ll have to apply for custody in your child’s home state.
Moving with my child once I’ve filed for divorce.
Once you’ve filed for divorce, a temporary custody order will be put in place. Whether or not you can move with the children will be determined by this temporary custody order. Most states require some form of written notice or consent from the other parent before you can move with a child, particularly if the distance you want to move would significantly impair the ability of the other parent to spend time with your child.
There also are usually notification requirements, meaning the other parent must be notified so many months in advance of a proposed move. If parents can’t agree on custody, a judge will decide it for them. Moving with a child without the consent of the judge can lead to kidnapping charges.
How does moving during divorce affect me?
Child custody and relocation laws differ by state, so it is incredibly important to seek legal counsel if you or the child’s other parent is contemplating a move. All states want to do what is in the best interest of the child. Because shared parenting has been linked to better outcomes for children of all ages, co-parenting is generally preferred if both parents are fit, and thus moving with a child is such a sensitive issue.