Relocation And Child Custody FAQs

The following issues relating to relocation and child custody often come up for divorced parents who face the aspect of moving not only to a different city, but sometimes to a different state.

By WomansDivorce.com | Answers by Brette Sember, J.D.

While it's normal to want a fresh start after your divorce, it can be a little more complicated than just packing everything up and calling the moving company when you have children with your ex. Not only will such a move impact your children, it will also affect how often the non-custodial parent gets to see the kids.

Learn about having a relocation clause added to your divorce decree, how to proceed when you don't have on, and what the court takes into consideration when granting a parent to move away.

Relocation Factors:

Relocation Clauses:

Providing Notice & Getting Court Permission to Move

Getting Permission from Your Ex to Relocate:

Injunctions against Relocation:

Moving Away before Divorce:

Relocation and Child Custody Agreements

Relocations without Custody Arrangements:

Temporary Relocations:

Short Distance Relocations:

Long-distance Relocations:

Grandparents and Relocating after Divorce:

Relocation Factors

What factors does the court consider for allowing relocation?

Annie Asks: We share custody of our son and I'm planning on moving out of the state sometime later this year. How do I go about that and how soon? What reasons will the court look for allowing me to take my 4 year old son with me?

Brette's Answer: First you should talk with your ex to see if you can reach an agreement. That would be the best way to go about this. Work out how he would have time with your son. If you can get him to agree, it won't be a problem.

If not, you will have to go to court and will need to show the relocation is in your son's best interest. You should talk with an attorney about how courts in your state consider this decision, but in general, the court will look at how the move will improve your family's situation - this could include having a better job, having more family support, entering a stable relationship, attending better schools, and more. You will also need to present a plan for ongoing contact and visits with the other parent and show a commitment to supporting the parent-child relationship.

How do I prepare for a relocation hearing?

Ruth's Question: I have asked my ex for permission to move 42 miles from our current home, but he says no. I filed the proper motion to appear before a judge, but I'm worried that the judge will say no. We have three children together, 23, 19 & 11. The two older children want to go to court to testify that he hasn't been a part of their lives since we left six years ago. He doesn't pick up my youngest daughter for visitation and has had her overnight only twice in the last year. In the motion I indicated that the move would be good for our daughter because it would put me in a position to work part-time, affording me more time to spend with her and that she'd be able to attend a private school. What else should I do?

Brette's Answer: If the move will be best for your child and you can show the court there will be an improvement in quality of life while still maintaining contact with your ex, relocation will likely be grated. It would be helpful to have your older kids testify as to how often he participates in the younger daughter's life. It sounds like you have a good case, but you should be prepared to offer a plan for how he would see her. 42 miles is not far at all so they could continue to do weekend visits I would think. Good luck.

Why is the children's best interest the overriding factor in relocation?

Michelle's Question: I still can't understand why only the children's best interest is a factor in relocating. Why is it in my "children's best interest" for their mother to be cheated on, left/abandoned, divorced and now forced to live where she doesn't want to live (for obvious reasons)! Married for 10 years....stay-at-home mom, whose husband left and was gone for 6 months before I filed for divorce...didn't pay for child-support during that time; only maintained mortgage and utility payments. I was forced to sell my house, relocate my children to a different town and school district, pay an exorbitant amount for housing.....and I now have to watch my ex-husband's mistress "mother" my children when they are with their father. How could that possibly be the right thing to do, ethically or legally?

Brette's Answer: I understand your anger and point of view. You have rights and you need to have an attorney who can advocate for them - it does not sound like you've had that and that may be why your situation is as difficult as it is. Custody is determined based on what is best for the children. What you need to understand is that the parents' lives certainly impact the children's well-being. That is why relocation is often approved when it means the custodial parent will have a higher standard of living or a more stable situation. I know you're angry, but what you need to see is that having some kind of relationship with their father is in the children's best interests in most cases. Therefore, the court wants to create a situation where the children have access to both parents.

Would a move be approved if visitation traumatizes my son?

Desi's Question: I divorced 11 months ago. We have an 11 year old boy who is still very hurt that his father disappeared for a few months then showed up with a pregnant girlfriend. He refuses visitation in his home and the constant whining from his father turns their relationship into hell for my son. Every time they have a scheduled visit, my son is terrified because his father used to beat me up in front of him and my son is constantly under stress. For this reason I would like to move to a different state. How do I need to go about this so I can get the judge to approve this move?

Brette's Answer: Moving isn't going to solve your problem. You need to get your son to a therapist to deal with this. Then modify the visitation as recommended by the therapist.

Relocation Clauses

Can I include a relocation clause in my divorce?

Kori's Question: I want to leave the state that I am residing in but want to make sure that I will not have problems moving out of state with my child. What needs to be included in my divorce papers addressing this?

Brette Replies: You'll need to talk to your lawyer about this. It is possible to include a relocation clause, but usually relocation is determined at the time it becomes an issue, when the location and the details are known.

Can I move if there isn't a relocation clause in our divorce?

Jessica's Question: My daughter is 12 1/2 years old. I currently have primary physical custody, and he has some visitation, although he hasn't visited with her for almost 8 months. I was accepted at a school in another state, and I need to move in less than 2 weeks so that my daughter can start at her new school. There is no stipulation in my divorce decree stating that I cannot move. What steps should I take to make this happen, and is it necessary to file a petition for relocation?

Brette's Answer: There are two ways to go about this. One is to just move and leave it up to the other parent to protest it. This isn't always advisable because not only can it look bad if you just pick up and go without arranging a visitation plan, but you might end up in a situation where the court does not allow you to move and you're forced to come back or give up custody.

Instead, try to work this out with your ex. Try to find a way to make visitation happen on some kind of regular basis and make plans for contact by phone, email, etc. in between. If you can get him to agree, all you have to do is submit a stipulation to the court with the change in plans.

If he won't agree, the other way is to file the petition for relocation. That takes a lot of time to work through the courts. I recommend talking with an attorney in your area so you can understand how your jurisdiction handles these cases.

Can our informal relocation agreement be enforced?

Question: My ex is moving 6 hours away with the kids and only gave me 1 month notice because they are being evicted. When we separated, we printed off an agreement and both signed it stating that she was not allowed to move out of our area. We never went to a lawyer to get it notarized. Our agreement states that I get the kids for 3 hours every Tuesday and Thursday and every other weekend. Can she take my kids away from me like this?

Brette's Answer: An agreement that is not a court order is not enforceable. You can file for custody and visitation in family court. 

Could he stop me from moving if the relocation clause allows it?

Tessa's Question: I have sole custody and want to relocate to where my mother lives, which is about 5 1/2 hours from my ex. It says in my divorce decree that I can move to where my mom lives. Since the divorce was default and he has not complied, can I move or do I still need a court order?

Brette's Answer: If the order says you can move there then you don't need a separate order saying so.

Do I need to get court approval to move again?

Stacey's Question: I have primary physical custody and we live in 2 two different states already. My ex has visitation (he lives in Georgia and I received court approval before I moved to Florida). I want to move further away. Our parenting plan states I have to give 60 days’ notice and there is also a provision for long distance visitation (over 450 miles and visitation under 450 miles). Do I need to get court approval to move again?

Brette's Answer: Check with your attorney who can interpret what your order specifically says. If your ex does not agree to the move, you may have to get court approval. 

Where do I file the papers allowing me to relocate with the kids?

Question: I have primary custody of our 2 minor children and my ex has visitation. We all live in the same city, but now I have the opportunity to move out of state. Our divorce was in another county than the one we're living in now (we've lived here for quite a while). Do I need to go back to the same county to petition the court? Who do I ask for the forms, or whatever? What will it cost me? Thanks for any info you can give me.

Brette's Answer: You can file in your current county. You'll need to check with the court to find out what forms and fees are involved in your area. You can also check the state court web site.

How do I get custody modified to allow relocation?

Heather's Question: It states in the divorce that I have to stay in the school system that the kids are currently in, but I can no longer afford to stay in this area. How do I get the relocation and child custodyagreementtmodified and be able to move?modified and be able to move?

Brette's Answer: You either need to get your ex to agree and sign a stipulation which is then submitted to the court, or you need to file a petition to begin a court proceeding and ask the judge to modify your existing custody order. You will also need to lay out your plan for visitation after the move. Good luck!

Can the relocation clause be changed so I don't end up homeless?

Julie's Question: My custody order stipulates that I may not move out of the county with our children. Unfortunately due to my ex's failure to keep current with his child/spousal support to a tune of $35,000 over the past 5 years, I have been evicted from our house of 19 years. I have nowhere to go except to live with my parents...either that or live in my car with the kids as I have no family here. I have less than 40 days until I am locked out of our house. What is my best course of action - he probably will not sign the consent to move order.

Brette's Answer: File an emergency petition to modify your custody order. You also ought to be seeking enforcement of the child support at the same time. Good luck.

Can the relocation restriction be modified if he violated the restraining order?

Kasandra's Question: My Ex-husband broke the protective order I had against him and is now going to jail for 6 months. Would this be reasonable grounds for me to modify the divorce to move out of state? My family lives in another state and I would be safer there. I also have a job waiting for me there.

Brette's Answer: I'm assuming you're referring to the custody portion of the order which prevents you from relocating. It sounds like you have a strong argument to relocate at this point. Good luck.

Is relocation an issue if there is only one surviving parent?

NT's Question: If a parent with full custody was suddenly killed in an accident, I realize that the other parent would then gain custody, but I am confused about how relocation would come into play if the surviving parent decided to move.

Brette's Answer: Relocation shouldn't matter at all. It is only an issue when there is another parent who would lose contact with the child, or have less contact. When there is only one parent alive it's not something the court needs to even look at.

Providing Notice & Getting Court Permission

How can I give him notice if I don't know when I'll move?

Jodi's Question: My ex-husband and I already live in two separate states and have worked out visitation. I want to move closer to family in another state. Our court papers say I have to give him 60 day notice. I have no idea when my home will sell, so how can I give him 60 day notice? Should I just send a general letter stating I will be relocating the child at some point?

Brette's Answer: Since you are able to work things out on your own, can't you work out this notice requirement as well? You can give him a letter stating your intention to move but also saying that you cannot give an exact date until your home sells at which point you will give him an exact date as soon as you can. It doesn't sound like he will have a problem with that if he is able to agree to visitation with you. It sounds like you have a good relationship, so just try to continue in the same spirit by giving him as much notice as possible in as polite a way as possible.

What if we have to move sooner than the 60 day court notice?

Question: I'm looking to relocate to a town 1 hour from where we currently live, and since I share custody with my ex-husband I have to give the courts 60 days' notice. My ex agreed the move would be fine, so I do not think that will be an issue. We know the town we are going to move to but we do not know the exact address or date of the move, so how do I go about notifying the courts? And what if we have to move before the 60 days is up?

Brette's Answer: This should not be a problem if your ex has agreed. You know the town and you can give more details when you have them.

Since I gave him my notice, can I move before the 90 days?

Becky's Question: My divorce order states I give a 90 day notice of any move to my ex husband. I gave him a written letter in front of a court mediator. We have 3 children together but my oldest has not had contact with him in 2 years. My question is since I gave him my notice can I move before the 90 days?

Brette's Answer: 90 days means 90 days. There is no way around that. You could leave, but he could file to stop you.

How do I give him relocation notice if he can't be located?

Brenda's Question: My ex-husband is not able to be located. I need to notify him that I'm intending to move with our kids out of state. He has nothing to do with our kids anymore. How do I go about this to make the move totally legal? I cannot contact him, we have a DVPO against him, and he will never get the necessary treatment ordered by the court in order to see the children with supervised visitation.

Brette's Answer: Check with your attorney. You may be able to serve via publication in a newspaper or the court might have a procedure where you can skip service if no address can be found. 

What if one judge granted my relocation and another denied it?

Ann's Question: What do I do if one judge granted my relocation and another denied it and says I have 60 days to move back with no home no job and uprooting my child in the middle of the school year?

Brette's Answer: It depends on which order is most recent and supersedes the other. If you've been ordered to move, you must do so or return your child to the other parent. I suggest you get an attorney to help sort this out and determine if it can be appealed.

What if the judge denied our request to move after we reconciled?

Megan's Question: My ex-husband and I are attempting to reconcile and move back in with each other. We have discussed moving to TX since the economy there is better. Since our divorce papers state we cannot leave the state with the children, we requested a hearing to inform the judge that we would be moving together with our children. The judge DENIED the request. How can someone tell a couple who agree to move together to improve their lives and lives of their children that they can NOT move? It's appalling. I'm a total loss. Can you recommend my next plan of action?

Brette's Answer: I am also appalled. You need to get an attorney to get this resolved.

Getting Permission from Your Ex to Relocate

Do I need his permission to move?

Kathy's Question: I currently live in NY and I'm buying a house in NJ. I will be traveling to NY every day for work/ school with my daughter. I have physical custody and shared legal custody but with overriding decision making if we can't make an agreement. Do I need my ex's permission to move?

Brette's Answer: If the move is going to change the visitation schedule, then yes. If not, it shouldn't matter.

Do I need to do anything else if my ex gives me permission to move?

Tiffany's Question: I have sole custody and want to move out of state with our 2 children. My ex and I have always been civil, and he given me a signed and notarized letter saying that we can move. Do I need to do anything else?

Brette's Answer: I suggest consulting with a local attorney to make sure you comply with your state laws. You may need to go to court and sign a stipulation which will be approved by the court. Good luck.

Would a judge overrule my husband's consent to move with the kids?

Yana's Question: My husband agreed to sign consent for me to move out of state with our two children. Is it true that a judge may alter this decision even if we both agree that it's better for me and the children to move out of state?

Brette Answers: Yes it is true; however it is very rare that a judge would not rubberstamp a reasonable decision that is mutually agreed upon. It would only happen if the judge felt there was some inequity happening, or if he/she believed the decision was not in the best interests of the children. In general, it's nothing to worry about.

Will I have to move back if he says he didn't give consent?

Arica's Question: We've been divorced for five years. He filed a motion to prevent relocation two years later. We then came up with an agreement where he allowed me to move, and I relocated with his permission. Now three years later he is saying he didn't consent. Will I have to move back?

Brette's Answer: I'm unclear as to what documents were entered into the court. If it is a court document, he cannot undo his consent now. If this was a verbal agreement you had with him, you would need to try to offer some proof of this. Waiting three years to protest relocation is pretty ridiculous and I doubt the court will give it a lot of merit.

Can he make me move back if he agreed to the relocation?

Lori's Question: My husband and I are separated (no divorce pending) and he agreed and allowed me to move to another state with my 2 boys. We have now lived in the new state for 10 months. Every time we argue he threatens to file an injunction to make us move back. Can he do that?

Brette's Answer: No. He could file seeking custody or a modification of your order. Since he agreed to the children moving it is unlikely a court would change that. The court would never be able to make you move and only has control of who has custody. 

What happens if I move without his permission?

Tiffany's Question: In the divorce papers it says I can't move out of the state without my ex's permission. If I move without his permission, what can he do?

Brette's Answer: If you don't get him to agree and just go ahead and move, it is in violation of the order and is essentially parental kidnapping. You can either find a way to get him to agree, or you need to go to court and ask for a change. You can go to family court without an attorney and ask for a change.

What if he won't allow me to move?

Julie's Question: Our custody orders indicated that neither parent can move out of the county. I have since acquired a new job 86 miles away, rented a house near an elementary school and found out my ex WILL not allow ME to move without the children or without court orders. I have filed ex parte action and am concerned, being in "proper" that I might have holes when presenting my side. What are your suggestions?

Brette's Answer: The case is going to revolve around the best interests of the children. You need to show the court how much this will benefit your children. You also need to show your commitment to visitation, and present a plan for you can make sure your ex has enough contact with the children. This might mean longer periods of visitation over the summer and holidays. Good luck. » Return to top of Relocation and Child Custody

Injunctions against Relocation

Will I get in trouble if I move after he gets a temporary order?

Forever's Question: I have sole custody and have told the father that I am moving out of state and that I would still work with him on visitation of the children. He waited until the last minute of my moving day to file a temporary order of me not taking my kids with me out of state. Can he get me in trouble for leaving the state?

Brette Answers: It will depend on what your current order says. If it says you can't leave without permission, you have a problem. If it just gives him visitation, you aren't technically in violation of that until visitation is missed.

What is the penalty for violating an injunction against relocation?

Sarah's Question: If there is an injunction filed to prevent a parent from moving out of state, can they move before the court date? If they then follow the court's decision, will they be in violation and what could the penalties be?

Brette's Answer: Violating a court order places you in contempt which could lead to jail time or fines. Your state may have other penalties available.

Can I stop him from moving away with our kids?

Holly Asks: My ex-husband has sole custody of the three children. Once the divorce was final, I found out he married his old girlfriend. Now he wants to move the three children to NM with his new wife. Can he move my kids to another state? His new wife sent me an email stating I would not be allowed on base in NM to see my kids. She is trying to alienate and interfere with visitation with my children.

Brette's Answer: If you have visitation rights, he cannot move without court permission. You can file a petition in your state family court seeking to prevent the move. He has to show that the move would be in your children's best interest and that you would have access that will continue your relationship. An email from the new wife stating you will be denied access is important and could be of great help to your case in preventing the move.

What if he moved away with the kids without telling me?

Brittany's Question: My husband filed for and was granted a divorce in Texas. I have visitation, but I just found out that he took the kids and moved to Seattle without telling me. The divorce isn't even final. What can I do? Can he keep my kids legally? What if he drops the divorce?

Brette: You should file an emergency petition. Talk to the court clerk and ask what form to use. You want an injunction forbidding him from leaving the state. If he tries to withdraw the divorce, you file a cross-petition. It would help to get an attorney.

What if my ex threatens to take me to court to block the move?

Susan's Question: My ex-husband abruptly moved out of state. Our shared parenting agreement states that neither parent can move more than one county away from our original county of residence unless the move is agreed on. Now he is threatening to have my proposed move blocked due to the original agreement stipulations. My move is still within the borders of the original state of residence. Is there any basis for my ex-husbands threat to have my current proposed move halted by the courts?

Brette's Answer: It doesn't sound like he has much of a leg to stand on; however you did not describe how far the move is and how it will affect visitation - that is what will be key.

Will I have a hard time getting a relocation approval if he blocks me?

Karlene's Question: I have a legal separation that we both signed and filed with the county clerk. It does not address relocation. I want to relocate with our 11 year old from NY to NJ, 23 miles away. Current visitation will not be affected as I will transport our child to and from visits with her dad. He will incur no expenses for gas/ tolls. Will I have a hard time getting relocation approved if dad blocks me?

Brette's Answer: You shouldn't need approval if there is no impact on visitation. Generally moves that are of short distance are not considered relocation. The only issue may be that you are moving out of state. You should call your attorney before you assume you need to do anything.

Moving away before divorce

Would it be best to move before the baby is born?

Zoe: I'm pregnant and want to relocate to be with family. Would it be best to leave before the baby is born, and then fight for custody from the new location/birthplace?

Brette's Answer: If you are worried about a relocation hearing, then generally yes. No one can stop you from moving while pregnant.

Can he make me move back after the baby is born?

Clarissa's Question: I am now 5 weeks pregnant and my husband is emotionally abusive. I have the opportunity to relocate my job a few hours away where I have family and support. He says if I leave him he will seek full custody and make me move back to be closer to him. Can he make me move back once the child is born?

Brette's Answer: You should consult an attorney but you are free to move now. Most likely by the time the baby is born, a court would see your new residence as the status quo and it would not be an issue.

Topic: Relocation during separation

Maureen's Question: My daughter is married with a 6 month old daughter. Her husband is addicted to drugs and they are now separated. Is she allowed to move back home (to another state) with the baby?

Brette's Answer: Until there is a custody case, both parents have equal rights to a child. I would not recommend that your daughter simply disappear with the child though, however. Moving out of state could look bad however if her ex takes her to court. That is why she should let her husband know where she will be. I can understand that she probably does not want the child to have contact with him while he is addicted, however, she should encourage him to get straight (I'm sure she already has), and then plan to work out visitation in the future. At some point she's going to need to get formal legal custody though. I would recommend she talk to an attorney as soon as possible about her situation. Good luck to her.

Topic: Moving away before starting a divorce

Daniele's Question: I would like to get a divorce. We have twin girls and I would like to move to another county which is about 2.5 hours away from where we presently live. Can I do this and then start the divorce procedure? My reasons for looking so far is that this is the only place that I can afford the rent and the atmosphere of the city is much more calm than where we presently live. Legally, can I do that and perhaps advise the police department in the city where I am presently that I am relocating and there is no need for a missing persons report, as my husband will contact them saying that the girls and I are missing.

Brette's Answer: Moving to another county should not be a problem, as long as you arrange visitation. You should go to court and get temporary custody orders to get things started. I'm a bit disturbed by the suggestion that you're going to pack up and leave without telling your spouse. There are definitely some situations where this is warranted - if you are in danger or afraid. In other situations though, this could be detrimental to your desire to obtain custody. You should talk to an attorney and get some guidance on how to handle this situation. Good luck.

Can I move if we're still married and I have a letter saying I can?

Andrea's Question: I am still married and want to move out of state. As long as I get a signed notarized letter from him stating that I can have my son every other month, can he do anything to stop that?

Brette's Answer: You can go to family court and get an order of custody. This will protect you and make your agreement enforceable.

Can he take the kids and move before the divorce is filed?

Amanda's Question: Can a spouse take children out of state before the divorce is filed? If so what can I do to stop it?

Brette: Yes, if there is no case in progress, you both have equal rights to the children. If you want to stop it, file a petition in family court for temporary custody with a provision that the children are not to be taken out of state.

Can I move away once the divorce has started?

Angel's Question: I just got served with divorce papers, and I want to move out of state. Now he is trying to tell me that I can't move out of town with my daughter. Can I leave the state while being served with divorce papers?

Brette's Answer: Get a lawyer. You cannot leave during a pending proceeding without permission of the court. Good luck.

Relocation and Child Custody Orders

Will I have problems relocating if I agree to joint custody?

Kathy's Question: I am separated from my husband and we are going through mediation right now. We are discussing custody. In case I agree to joint custody, will I have problems relocating to a different place later?

Brette's Answer: It doesn't matter what type of legal custody you decide on. If you want to move and it infringes on his visitation, you could have a problem in the future.

Topic: Joint custody and moving out of state

Rose: We have joint custody and for now our child lives with both of us. I recently remarried this year and want to move to another state for a better paying job. My ex is unsure about the move because he feels he's been as much of a parent as I have and he wants to be there for our son. I do not have the money for an attorney, so do I have a chance at winning my case without one?

Brette's Answer: Relocating is a difficult thing for divorced parents. On the one hand, you need to do what is right for you and your family, yet on the other hand, you have a responsibility to make sure your child spends time with the other parent. I would suggest you and your ex try to talk this out. Can you create a plan that will let him have extended time with your child over the summer? Maybe he could come and visit her for long weekends? See what you can work out. You might also want to see a mediator who could help you come up with solutions that don't immediately occur to you.

If you go to court about this, it will be difficult. The court will have to weigh what is best for your child and will look at how much time your ex has spent with her in the past and what their relationship is like. Relocation cases are complex. If there is any way you can borrow the money or arrange a payment plan with an attorney your chances of winning are much better.

Can he relocate with our son if I have residential custody?

Ellen's Question: We have joint legal custody and I'm the primary custodian. My ex is looking to move across the country and has been talking to our son about moving there with him. His dad has recently divorced, hooked up with another gal within a week, and generally ignores our son for work/ to golf/ to date. He's just not very stable. I'm curious how likely it is for a court to grant a non-custodial parent the right to move with the child?

Brette's Answer: There are two hurdles - change of custody and then relocation. Both are hard by themselves unless there has been a change of circumstances. Your problem is going to be what your son wants. If this is what he wants, his opinion will carry some weight. Good luck.

Can he move if we have joint custody and he's not taking the kids?

Tracey's Question: I have joint custody of my children and their Dad is trying to move out of state. He has not paid child support in 5 months and has violated the custody order by not picking them up on his assigned week. He is not expected to take any children with him when he moves. What steps can I take to prevent him from moving out of state?

Brette's Answer: If he doesn't want to take the kids or have visitation in the new state, you can't prevent him from moving. You can take him in on a child support violation though. It's a shame he is not planning to use his visitation. I hope you can work something out so that he maintains contact with them and has some visitation. It's really important that they spend time with him.

Can I get sole custody if he moves across the country without telling me?

Donna's Question: My ex told the kids that last weekend was the last time they would be going to his house. He still has not informed me of his moving across the country. He gets visitation every other weekend. If he doesn't show up for our next scheduled exchange because he moved without proper notice to me is that considered abandonment? What should my next step be to obtain sole custody as we have shared custody now and I am the custodial parent?

Brette's Answer: He is not required to continue his visitation. It is not abandonment to stop coming. If he does move away, this would be grounds for you to seek modification of the custody order. You should talk with an attorney. 

Moving away when you have sole custody

Nancy's Question: I have sole legal custody, and my ex only gets visitation and not shared legal custody. Can I move away if I choose?

Brette's Answer: If your ex has visitation rights, but not shared legal custody, he still has parental rights. If the move will infringe on his visitation (make it harder), you will need to get court approval to move. You need to prove this is in the best interest of your child and show how your ex can continue to have visitation and a relationship. See an attorney to discuss your state's rules.

Can I move if I have full custody and he isn't part of my child's life?

Monique's Question: My ex and I already live in separate states and I have full legal custody of my son. My ex has had no part in his life for the last 5 years. I have a job transfer to another state in a month. Is there anything I need to do legally to move?

Brette's Answer: If your ex has not seen your child in 5 years it is very likely a court will not have problem with it as long as you continue to make him available for visits in the future. Talk to your attorney about whether you need to get court permission before you move.

Can I give him sole custody so I can move?

Jennifer's Question: Can I have it so the father of one of my children has sole custody? I’m ready to move out of state. His father doesn’t want to see him, but I know he will give me a hassle if I want to move. So can I give the father sole custody instead?

Brette's Answer: You can file for modification with the court and seek a change or to be allowed to move. Be aware that once you agree to let him have sole custody it is hard to get it back. 

Can he stop me from moving if he has full custody?

Bridget's Question: My ex husband has full physical custody of my son and I have visitation. I am considering moving an hour and half away. I plan on keeping all my visitation as its only an hour and half away and I can drive it. Can he stop the move?

Brette's Answer: He can't stop you from moving but he could seek to modify the visitation based on the change in circumstances - because it would be a longer drive. It would be up to the judge to decide.

Can I move if he has no visitation rights?

Rachelle's Question: My ex gave me full legal and physical custody of our son in over 2 years ago. There is no stipulation for visitation in the modification paperwork. My fiance and I are planning on moving out of state and I want to know if I can move and cut contact with my ex completely?

Brette's Answer: If no visitation is listed in your order, there is none unless the two of you agree. If he wants it he could file for it. If however, he currently is seeing your child and you cut off contact, that could reflect badly upon you in the court's eyes.

Relocations without Custody Arrangements

Can I leave if we were never married?

Erika's Question: We were never married, and don't have court-ordered custody arrangements for our daughter. We reached an agreement on our own and have done a 50/50 arrangement for the past 5 years. She's almost 6 and I want to move to another state. If I decide to pack up and move with her, how much trouble could I get in? My lawyer told me that a judge wouldn't change her life, since it's all she has known, but I want to move now.

Brette's Answer: If you just pick up and move he can get a temporary order to restrain you from leaving and give him temporary custody. To just leave without working out a plan for visitation is considered custodial interference - and how will your daughter have a relationship with him in those circumstances? If you are unable work something out with him, you will need to go back to court to get this settled. You could offer to let her to spend a month with him in the summer and a week at Christmas or Easter, as well as visitation any time he will be in your area. You should be prepared to explain to the court how the move is best for your daughter and will result in more stability or a better lifestyle. You also must show that you are willing to arrange visitation for her.

Can I move if his name isn't on the birth certificate?

Metra's Question: I gave birth three weeks ago and her dad's name is not on the birth certificate. We aren't married and he has never helped or been a part of my life. I am planning on moving 2 hours away from this town. Will I need a court order to move? Could he stop me from moving?

Brette's Answer: No, right now he can do nothing. He would need to commence a paternity case before he would have any rights.

Can I move if there are no custody arrangements in the decree?

Amanda's Question: I had an uncontested divorce that states "there were no children born of the marriage". Since we have no relocation and child custody arrangements in writing (but I do have the kids 90% of the time), can I legally take the children and move to another state?

Brette's Answer: That phrase is used when there are no children. If you are saying you do have children together, then there was an error and you need to get it fixed. If there is no custody order, you technically can leave, but you're going to have a problem if he files to prevent the move or to seek custody after the move. Picking up and moving without making arrangements for visitation will not reflect well upon you in the eyes of the court.

Can we move if there are no custody or visitation orders?

Sydney's Question: My husband and I have had his children full-time for over two years. Their mother has always lived hours away, and we believe she recently moved to a different state. She has little to no contact with the children, and no physical contact with them. We have no parenting plan in place but want to move several states away. Do we have to file a petition to the courts since there is no court order and it won't affect her visitation or custody at all since she doesn't see the kids anyway?

Brette's Answer: IF there has never been a court order of custody, both parents are presumed to have equal rights to the children. If you moved, she could certainly file a petition for custody and/or visitation and seek to prevent you from moving. You should talk to an attorney in your area. 

Temporary Relocations

Topic: Temporary relocation after divorce

Sarah's Question: I am remarried and have sole custody of my 5 year old from my previous marriage. My new husband has an out of state internship offer for the summer that will last for 8 weeks, and I'm obviously planning on going with him. Can I take my 5 year old without much hassle from the courts if my ex is against it? And how would I do this?

Brette's Answer: You should first talk to your ex about the situation. What can you do to make arrangements for him to see his child at some point while you are gone? See what you can work out together. Approach it with the attitude of finding a mutually agreeable solution. If he will not agree, you can either go to mediation or to court. Since this is a temporary relocation, it is likely a court would allow you to go, but might require you to travel back with the child once for visitation. Try working this out on your own first if at all possible. Good luck.

Is primary custody affected if my son lives with my mom when I move?

Adrianna's Question: I will be going to college full time this fall to finish my degree in another state, which is only 90 miles from where I live now. Since my son is already in Head Start, can I move and leave him with my mother Monday-Wednesday, since his father's visitation is Wed-Sat every week? Will I still be the Primary custodian?

Brette's Answer: If you do this, your son's father could ask the court to give him residential custody. Courts prefer that a child be with a parent when possible. If you decide to move and take your son with you, but plan to continue the visitation schedule it should not be a problem - however moving out of state can be an issue, no matter how close it is. An attorney in your area can provide detailed information about your state laws.

If I move closer to my ex, can he prevent me from leaving later on?

Michelle's Question: I have sole custody of our three children. After the divorce, the kids' father moved to another state. If I moved there as well, would my ex be able to prevent me from leaving later on down the road?

Brette's Answer: It is possible, depending on how long you live there, how often they see each other and how the situation develops.

Short Distance Relocations:

Could he prevent me from moving 20 minutes away?

Kristen's Question: I want to move closer to my first ex-husband. He and his wife co-parent my daughter with me and are very helpful in babysitting my other two children. I am currently separated from their father and we are getting a divorce. The town is in the same county and only 20 minutes away from where we now live. My "soon-to-be" ex-husband is threatening to put it in the divorce a clause that I cannot move. The move will not affect his visitation at all as I have agreed to take the kids to and from even though it is such a short distance. Can he keep me from moving?

Brette's Answer: It's up to the judge, so you need to show why it is in your and your children's best interest to move. You also need to show how this will not affect your soon to be ex's visitation at all.

Topic: Relocating to an nearby town

Melanie's Question: My ex-husband and I share joint custody of our 3 children. In my final decree it states that each party is to live in the town we lived in when we were married. I am planning on moving about 25 minutes away, which would mean that my daughter has to change schools. If we have a trial what are the chances of me winning?

Brette's Answer: You shouldn't have to have a trial. 25 minutes should be insignificant and there's no reason you can't reach a settlement. Should you go to trial, I can't see how it would be a problem, unless you have an arrangement that requires you to bounce the kids back and forth every day or every other day.

Can he move out of the county if it affects our parenting agreement?

Julie's Question: My ex-husband moved 40 minutes away. Though that doesn't seem far, it is too far for me to commute in the mornings and still get to work. He moved without asking me and is now expecting me to drive them all the way to him. He does watch the children while I'm at work, but this is something we agreed to in our divorce.

Brette's Answer: You can file for a modification of the terms of your custody arrangement. Good luck.

Long-Distance Relocations:

Is it worth trying to bring this relocation proposal to court?

Sabrina's Question: I have a great opportunity to move back to our hometown, work full time, and have the kids grow up around both his family and mine. I would finally have a support network and people I trust to watch them while I'm at work. He is Jewish and I am not, but I would go as far as finding a synagogue in the area and enrolling them. I would suggest to the court that the kids be with me during the school year and with him during the summer. And extended vacations during school holidays. The 6 hour drive is a pain, but it is do-able for this kind of visitation schedule. Is it even worth it to try to bring this to court? Would I need to have the job, house, and school lined up ahead of time? If the judge decides in my husband's favor instead, can I ask the court to continue to do the 50/50 custody agreement we have now?

Brette's Answer: It is very doable. The change would provide many benefits for your children. It would be helpful to know where you plan to live and work and which school your children would go to. It would also help to locate a synagogue. If the court decides against the move, you could continue your current custody plan.

Would I be allowed to move if we already live far apart?

Robin's Question: We divorced in Louisiana and he moved to Tennessee. I have physical custody and moved to Alabama. I am ready to move back to Louisiana and was told that he couldn't stop me from moving since we live in different states. Is that true?

Brette's Answer: It sounds like a move would have no impact on your visitation - you would still be about as far apart. Generally you need permission to move when doing so changes the situation. In your case, it wouldn't.

Can he make me move back after so long?

Megan's Question: My ex-husband and I have been divorced for 8 years. When we divorced, I signed a document that I would move back once I finished college. Since then, I have remarried and my ex allowed us to relocate to another state. He is now trying to make us move "back" to the neighborhood he and I shared 8 years ago. Does my ex have any right to make us move back?

Brette's Answer: He can try, but the fact that he's put up with it for so long is a strike against him. It is unlikely a court would make you move back after your ex consented to your current situation. It sounds like your court order needs to be modified to reflect the current situation.

How can I improve my odds for a temporary overseas relocation?

Kristan's Question: My ex moved out of state (a little over 200 miles away) when we separated but has maintained a visitation schedule of every other weekend with our 6 year old daughter. I am the custodial parent and was offered a job in Australia for 2 years after which I will return to the current state that I am in. I have worked out a schedule for him that will give him more time with our daughter (although it will not be every other weekend like it is now) and I have offered to pay for her travel to and from visits. He refuses to compromise on anything which allows me to take her to Australia. I plan on going to court for approval. How should I prepare for court and what are some of the difficulties I might face in winning this?

Brette's Answer: Prepare your complete plan and be able to show that it will be more time. Provide a plan for phone calls and Internet or texting access. Be prepared to prove your contract is for two years and that you plan to return. It is always helpful to have an attorney in a situation like this.

Can I move to Puerto Rico if we have joint custody?

Barbara's Question: If you have joint custody of a child, can one parent move and take the child to another country (Puerto Rico) to live without the consent of the other parent?

Brette's Answer: Puerto Rico is not another country; it is a commonwealth of the US. This is a relocation issue. If your custody order is silent on it, you can file for permission to move or you can wait for the other parent to file to try to stop you. If you move you deny the other parent visitation. I would suggest you try to work out an agreement that will allow you to move, but give the other parent adequate visitation.

Grandparents and Relocating after Divorce

Can the grandparents stop me from moving away?

Kimberly's Question: Can I leave the state if my ex-husband has been in prison for 9 years since our son was 4 months old? The divorce was defaulted on his part, so he has no visitation, custody etc. His parents are involved and might put up a fight. I don't mind giving them visitation a few times a year. They have him every other weekend and have always been helpful with school clothes. What can they lawfully do to me?

Brette's Answer: Try to work something out with the grandparents first. If you can't, they may sue for grandparent visitation. It sounds as though you have a reasonable relationship with them, and if you make it clear that you want your son to continue having contact, they should work with you.

What if the grandparents don't approve of the relocation?

Erin's Question: My ex and I have joint custody of our son, with me having primary placement. I am planning on moving to another state, and my ex has no problem with me leaving. Unfortunately, his parents are putting up a fight. I am more than willing to allow very acceptable visitation to them, such as spending Christmas and one month during the summer with them. I am even willing to pay to transport my son there. My ex mother-in-law is telling me that I can leave, but that my son needs to stay with her. What can I expect legally from the Grandparents out of the situation?

Brette's Answer: If the father has no objections you should be able to go. They can file a petition for grandparent visitation but they certainly have no right to custody. You have a plan in place for very reasonable visitation - it should be fine. Why not get your ex-husband to try talking to them since he is ok with the move?

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