When Can One Spouse Take a Child Out of State?

If you are currently or soon will be divorcing or separating from the parent of your children, it is vital that you know your rights as a parent, especially in regards to travelling and moving out of state with your children.  Many families move to Arizona for work, the weather, or better opportunities. Thus, when a couple separates, it is not uncommon that one of the parties want to move back the state they originate. Therefore, information regarding a spouse taking a child out of state is not only important, it is often used.

Can one parent take a child out of state prior to a divorce filing?

While the parents are legally married and have custody of their child, either parent can take the child out of state without the other spouse’s permission. However, when custody is decided during the divorce, one of the factors the court will look at is if either parent will interfere with the child’s relationship with the other parent. Picking up and taking off with the children in the middle of the night will definitely be viewed as interfering with the other parent’s relationship with the children. 

My spouse and I are legally separated. Can my spouse take our children out of state?

In a legal separation, spouses live separate and apart, and matters like property division and child support and custody will be handled just as they would in a divorce. However, while those matters are being completed, the parents are still legally married. This can create issues before there are custody orders in place. For example, if the parents are married and one parent moves out of state, they may request that the children visit for the summer. At the end of the summer, that parent may refuse to return the children to their home state. Law enforcement would have no right to intervene as the parents are still legally married and the parent keeping the children is not technically violating a custody order. In a situation like the one described, the home state parent should have the out-of-state parent sign an agreement to return the children after a set period of time. 

What about moving after a divorce petition is filed, but before the divorce is finalized?

Taking or moving children out of state during a divorce is a bit trickier. During a divorce, you or your spouse may file temporary custody orders. Failing to abide by temporary custody orders during a divorce could hurt your case for custody after the divorce. These temporary orders will likely have a provision not to take the children out of state before the divorce is finalized. 

If one parent does wish to move the children out of state during a divorce, there are three necessary steps to take. First, the parent wishing to move must file a motion with the court requesting permission to move with the children and listing the reasons why the move should be allowed. The other parent will be notified of the motion you filed and receive a court date where you will both present your opinions on whether the move should be allowed. Factors the court will look at include any potential improvement in the child’s quality of life, if both parents will be able to be engaged in the child’s life after the move, if the parent moving the child out of state will comply with custody orders, if the move is motivated by keeping the child from the other parent, and if uprooting the child will have a negative impact on their emotional well being. 

The judge will then rule on the order, and both parents must comply. If the motion is granted, the judge may order additional time spent with the other parent before moving. The judge may also order time for the other parent to have visitation after the children have moved, and assign responsibility for transporting the children for that visitation. 

What is the Uniform Child Custody Jurisdiction Enforcement Act?

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is a law that has been passed in every state except Massachusetts to prevent one parent from leaving the state with the children to take advantage of more favorable child custody laws. The UCCJEA recognizes that children have a home state, and a child must be living in a state for six consecutive months before that state’s custody laws apply. 

Can my wife just leave with the children?

As mentioned above, leaving with the children before a divorce will be a factor weighing against that parent when final custody orders are decided. However, the court will overlook these types of actions if the parent who took the children out of state believed the children were in danger, like in cases of domestic violence. 

How can I prevent my spouse from leaving with the children?

• Be familiar with any existing custody orders (whether they allow for out of state travel with the children) and which state laws will apply. 
• File an objection or an emergency motion if you learn of the children’s other parent’s plan to move them out of state without your consent. 
• Hire an attorney to help you voice why it is better for the children to remain in your state. 

How can I be a long distance parent if the court allows my ex to move the children out of state?

The judge may find that moving out of state may actually be what is best for your children. If so, you will need to find ways to be involved in their lives from afar. Just like you would have visitation scheduled if you lived in the same state, you should schedule times to skype with your children. If possible, the children should stay with you during extended breaks from school like summer and winter vacations. Include both of these in your formal custody agreement so you will have an easier time enforcing the order if the other parent later refuses to comply. 

Our attorneys have years of experience both helping parents who want to move out of state and those who want to prevent the other parent from doing the same. If you have more questions about leaving the state with your children, our Arizona family law attorneys are available for free consultations over the phone.  Call (480) 833-8000 and speak with one of our lawyers.