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When a marriage falls apart, it’s understandable that one parent may be thinking to to start fresh somewhere new. In some cases, it may even be necessary for your safety and well-being to put some miles between yourself and your ex-spouse. But leaving your spouse doesn’t mean you want to leave your children.
So, what do you need to know about moving to another state with children before a divorce? Is it even possible? Let’s break down everything you need to know in today’s blog.
Can You Move to Another State with Children Before a Divorce?
In most cases, moving to another state with children before a divorce is not legally permitted. While you are married, both you and your spouse have equal custody entitlement of your children. Custody agreements are worked out and put into effect only after a divorce.
If you were to take your children to another state without notifying or receiving the consent of your spouse, they could legally demand the children be brought home and be accused of kidnapping. You don’t want that. In addition, you may lose leverage when it comes to custody deliberations as being the parent willing to go to illegal extremes without regard for the law. If you want to move to another state with children before the divorce is finalized, however, there are a few options:
Gain the Consent of Your Spouse
You can move to another state with your children as long as you have the consent of your spouse. If this is an amicable divorce, you may be able to peacefully discuss where the children will live. In fact, the majority of divorces that occur are low conflict. However, for the 15-30% of divorces that end in high conflict, getting consent may not be possible.
Even in some low-conflict divorces, you may not be able to gain consent to move to another state with your children. Distance in this case usually does not make the heart grow fonder. It’s hard to maintain a relationship with your child being thousand’s of miles apart and facetime or Instagram just don’t replace real-time visits. The discussion of where your children will live after the dissolution of a marriage is an emotionally fraught discussion. You both have a stake in this, as do the children. While this is worth trying, you may have to face the possibility that your spouse will not give their consent.
Petition for a Court Order to Move with Your Children
The next option is a bit of an extreme choice, but it is warranted in some situations. If your spouse is an unfit parent or if living with them would create an unsafe environment for your children, you may petition the court. You may be granted a court order that permits you to move the child out of state.
To be granted a court order, you will need to be able to prove that the child’s welfare is endangered by staying with your spouse. Issues of domestic abuse, as well as any special needs the child might have depending on their age or development, will be taken into account when determining whether or not to allow you to move out of state with your children.
Move Now, with a Plan to Have Your Children Join You After
If the children’s current living situation is not dangerous or harmful, and particularly if the divorce is low conflict, you may be able to move now with plans to have your children join you once the divorce is finalized.
This is something you can discuss with your spouse in low-conflict situations. You may be able to split custody, wherein the children will stay with you during the school year and stay with your spouse during the summer or vice versa. In cases where your spouse is unwilling to budge, you can move now while building your case for full custody. If the court grants you full custody, your children will then be able to move with you.
Get Your Child’s Input — If They are of Age
At the age of 14, New Jersey law grants your child the right to have an influence in custody arrangements. But, it’s not the only factor and Court’s are inclined to keep the kids directly out of it as much as possible. That said, they can have a preference in living with one parent or the other and the Court will take it under advisement. If your child is sixteen or above, you could gauge their temperature about an out of state relocation.Let them know that you’re planning to move out of state (or that the other parent is thinking about it) and askhow they feel about it. . Do not try to manipulate your child in their choice, by love-bombing them or talking disparagingly about their other parent. Get their honest thoughts and feelings about it and be respectful of whatever their answer is. You and your spouse can then curate a plan that makes sense giving some consideration to your child’s thoughts.
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When Can a Parent Relocate with a Child in NJ?
Obtaining a Court Order for Custody of Your Children Before Your Move
It is always ideal to work out a custody agreement with your spouse without having to go to a hearing in the case of moving out of the state with children before a divorce. However, when that’s not possible, you should prepare yourself for a grueling legal process — and the importance of having an experienced team to help you.
As we stated above, if you cannot get consent from your spouse to move your children out of state, you can petition the court for full or primary custody of your child. The first thing you will need to do is hire an attorney who is devoted to just family law, especially custody cases. Discuss the situation with your attorney, and they can help to build your case for the best chance of success.
Many courthouses will have forms to petition for custody of your child. You can fill these out by hand and file them, or your attorney can draft a petition themselves. We recommend that your attorney fills out the petition as there are nuanced issues and ways to phrase things that could make and break your request or opposition. In most cases, you have one shot at this and if you blow it, it will be a forever uphill battle to reach your ultimate outcome. Make sure that your attorney is aware that you plan to move your children out of state, as this will likely be relevant to the custody proceedings.
If you do decide to proceed with a formal court process, the other parent is entitled to respond, in writing, to the relocation request accordingly. And, you both are off to the races where a Court may (and likely) appoint a best interest evaluator to recommend what would be in the best interest of the child pursuant to the rules and regulations of NJ Law (Bisbing v. Bisbing)
Custody proceedings are often ugly and emotionally distressing for all parties involved. These proceedings end up being some form of competition to prove that one parent is more capable of caring for the child than the other. However, that’s where parents go sideways. The focus should always be on the best interest of your child and how that child is going to maintain a strong quality relationship with both your regardless of the request to move. Your ex-spouse, or their legal team, will attempt to diminish your capabilities as a parent or may become defensive in response to your own claims that they are an unfit parent. This is part of why it’s important to have legal representation to navigate these arguments. If you react too emotionally, it will backfire.
The court will also require both parents to take certain parenting classes to really ensure you both have thoroughly thought through this issue with logical criteria in making your decision. . They will also require that you have at least attempted to mediate a custody agreement before the Judge is required to make the call. A court order is always a last-resort option. That said, at the end of the hearing, if the court finds that it is in the best interest of the child for him or her to relocate out of State, a detailed and comprehensive visitation plan will also be implemented to the parent staying behind. Of course, if you are in a physically abusive situation and need to relocate on an emergency basis, there are emergency rules you should learn about on whether you can just pick up and go elsewhere.
What to Do if Your Spouse Moves Out of State with Your Child Before a Divorce?
But what if you’re in the reverse situation? What happens if your spouse moves out of state with your child before a divorce, without gaining your consent to do so?
In addition, for filing for custody you can also file an emergency motion to have your child or children returned home immediately. Because divorce is already a time of great upheaval for children, courts will often side with keeping the children in their home school so that they have as much of a sense of normalcy as possible until this issue is flushed out. You will likely be granted temporary custody of your children until final custody arrangements are made or worst case, the Court will Order the other parent and child back.
It’s important to take action as soon as possible if your spouse leaves the state with your children. If you wait for a period of time before filing the emergency motion, it gives credence to the idea that you consented to your spouse moving with your children. File the emergency motion and hire legal representation as soon as you realize that your spouse has left the state with your children.
Hire a Family Law Attorney to Help with Your Complex Custody Issues
Custody battles can be among the hardest legal proceedings you’ll ever have to go through. Don’t go through them alone. A custody lawyer can help you gather evidence and build the case for custody so that you don’t have to be separated from your children while deciding to leave a marriage. Even in the event of an amicable custody agreement, it helps to have the security of a legal team on your side to ensure all the details and logistics are worked out, written down, and set the entire family up for success in the future.
Contact Men’s & Father’s Rights Divorce Lawyers by Schultz & Associates, LLC, to analyze your case and be able to proceed in the best possible way. Call us today at (201) 880-9770.
Carrie S. Schultz, Esq. – author
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