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My Spouse Left The State With My Child What Do I Do?


It is not uncommon that after a marriage breakup, one of the parents might move out of state with the child(ren). If both parties consent, then there is no problem. If your spouse or partner makes the unilateral decision to move out of state, as you can imagine, the stress, fear, and anger you likely will feel can be overwhelming. There are few things during divorce that can be as scary. But be assured, that with the help of an experienced attorney on your side, you can get your child back. Whether they know it or not, the moving parent could be making a costly mistake that will haunt them as the custody battle goes forward. They may be jeopardizing their future custody relations with your child or children.

What Happens If The Other Parent Has Already Left The State?

Along with the complaint for custody and an emergency motion, there is a writ you can request which commands that the child be immediately returned to their home state. If the other parent remains out of state during the pendency of the custody case, you will most likely be granted temporary custodial parent status until a final decision is reached on permanent custody. The court will defer to the status quo and keep the child in the home state rather than cause more disruptions to the child’s routine. To remove children from their school, friends, and life as they know it, can be very traumatic for children. Therefore, the court will be hesitant to allow this to happen without a full custody trial. Since no two cases are ever the same, nothing is guaranteed. Like most situations, when it comes to legal decisions by the court, there are other factors that must be considered. For example, whenever the court makes a decision regarding a child, the court always must consider whether the decision is in the child’s best interest.

As mentioned above, there can be negative consequences for the parent who attempts to move the child out of state. One such example may be that the moving parent has demonstrated that they will put their personal interests above the best interests of the child or children. When a parent is willing to abruptly uproot the children away from their other parent that shows a total lack of regard for the critically important relationship the children has with each of their two parents. There is a consensus that it is better for a child to have a close and loving relationship with two parents. So if a parent disrupts that parent-child relationship, there must be a very good reason, otherwise it may backfire on them.

What Happens If You Do Nothing?

If your spouse or partner moves the children out of state and you do not immediately seek relief from the court, it creates an image that you may have consented or acquiesced the move. After a few months, if you try to convince the court that the move was damaging to your child(ren), the court may dismiss the motion on the grounds that if there was strong concern, you would have come to the court immediately. If you file immediately for an emergency custody order, it strongly supports that the other parent’s unilateral move of the child was not in the child’s best interest and clearly was not consented to by you.

Even if the move is agreed upon by both the parents, it is still advisable to seek temporary custody and visitation rights before the action. In this situation, if you need assistance in creating a viable temporary access order, contact an experienced and reputable family law attorney to help protect your custody and visitation rights during and after the litigation process.

What Should You Do If Your Spouse Leaves with the Children?

You have specific rights as a parent and you need to protect them immediately if your spouse leaves with the children. If you simply allow this to happen without any recourse, you may actually lose your rights when the divorce and custody case go in front of a judge. To protect your rights, immediately contact a Family Law attorney specializing in divorce and custody cases. The most important thing to do is to ask quickly – if you take weeks or months to act, the court will view it as if you don’t really care that much and it makes it look like you are just ‘going through the motions.’ Act fast, and demand that your children be returned to your care or that you are given equal parenting time with them. Nothing destroys a case better than not acting soon enough, especially if a parent takes the children out of state.

Get an Agreement in Place – your attorney should contact your spouse’s attorney immediately to begin working on an agreement. If you just show up and take the children, it could turn into a legal mess for you, so be patient and leave it to the attorneys. At the very least, the contact is documented so the courts will know you simply did not allow this to happen and that you are very interested in remaining in your children’s lives. Make the agreement reasonable and the chances that you will find common ground are higher than if you make a demand that seems too off-balanced in your favor. Ask for 50/50 parenting time and negotiate from there.

Create Visitation Schedule and Stick to It – the time you spend with your children will be scrutinized heavily during the divorce process. If you plan to fight for custody, make sure you are still involved in all parenting decisions for your children. You also need to make sure when the children are with you, you are there for them. Do not just pick them up and put them under the care of sitter, family member, or friend. Be there as their father/mother and spend quality time with them. This will matter when the case goes in front of a judge. In addition, do not miss any scheduled visits. If you have agreed to a schedule, stick to it so missed times cannot be used against you during the custody hearing. Be on time, be engaged with your children, and unless you are taking pictures or videos of the children having fun with you, keep your phone in your pocket.

What Happens When One Parent Wants To Move Away With The Children?

Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.
If the parents have joint physical custody of the children and 1 parent does not want the child to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.

Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.

If you are worried that the other parent may want to move away with your children, or if you think you may want to move away with the children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.

Staying Close To Your Children If They Move Away With The Other Parent

You can make a parenting plan that takes into consideration that your children are moving away and changes the visitation so that you can still have quality time with your children. Click for help with parenting plans.
Also, thanks to the Internet, there are other ways for you to stay connected to your children, not just e-mail. There is something called “virtual visitation” that helps you have “visits” with your children through web-based camera-computer technology.

Can I Move My Children Out Of The State?

The answer to this question is very complicated and may depend on many different factors. We strongly suggest talking to a lawyer for specific legal advice on your situation. The laws on parental kidnapping also known as custodial interference, child concealment, or parental abduction, are different in each state. In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending. In other states, the act of taking the children out of state itself may not be illegal unless the parent hides (conceals) the children from the other parent. Other factors that may be considered are whether the parents are married and considered to have equal parental rights or, in the case of unmarried parents, whether the father’s paternity has been legally established. Additionally, there may be a big difference between if you are planning a short trip out of state or if you are intended to move out of state long-term.

Again, please talk to a lawyer in the state you are thinking of leaving from who understands custody laws and criminal laws to determine what your state’s laws are and how they might apply to your situation.

Can I Get Temporary Emergency Custody Before Or After Moving With My Child?

If you are applying in a state where you and the child have recently arrived:

Under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), you can apply for temporary emergency custody in a state that is not the “home state” of the child if:

The Child Is Present In The State And Either: The Child Has Been Abandoned; Or It is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

Emergency jurisdiction is a temporary solution designed to protect children who are at risk of abuse or mistreatment. Only the state with “preferred jurisdiction,” usually the home state, can issue or change a long-term custody order. If cases regarding the same child have been filed in two different places, the judges are required to communicate with each other to decide which state will keep the long-term custody case.

The Other Parent Is Threatening To Charge Me With Parental Kidnapping If I Leave The State. What Can I Do?

If you have not left the state yet or you have left but have not been charged with kidnapping, we strongly suggest that you talk to an attorney who specializes in criminal laws in your state. Hopefully, the attorney can advise you on whether or not you are in danger of committing parental kidnapping if you leave and what possible court actions you can take before leaving to do so legally. If you have left, you can ask about what steps you can take to try to avoid being charged with parental kidnapping.

In some states, if you are criminally charged but you are fleeing a pattern of domestic violence or to protect a child, then you may have what is called an “affirmative defense” to the charge of parental kidnapping – but this can depend on your state’s laws and your specific situation. If you have enough evidence to prove this defense, you might be able to avoid being convicted. However, it may not prevent you from being arrested and charged with the crime and you can still suffer all of the consequences that could come with being arrested, such as losing custody. If you are fleeing domestic violence or to protect your children, it may be a good idea to collect evidence of the abuse before you leave, if at all possible, depending on your situation. Evidence of domestic violence or child abuse may include proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that you have seen a counselor and tried to get help, testimony from family, friends, or other witnesses, or anything that is evidence of an ongoing abusive relationship. Note: In some states, there are specific conditions you need to meet before or immediately after you flee to take advantage of these legal protections.

For example, some states require a victim of domestic violence to make a report to law enforcement before leaving the state to avoid being charged with a crime. You can ask an attorney in the state you left from for this information. A few states do not apply their parental kidnapping laws to victims of domestic violence, which is why it is important to speak to a lawyer in your state to understand what the laws in your state require.
Again, we strongly recommend that you talk to an attorney in Utah who understands domestic violence, custody and your state’s criminal laws before you make a decision.

Child Custody Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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