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. This blog addresses those times that one parent moves the child or children without any advanced agreements in place.
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(ren).
So what can you do?
First, if you have reason to believe that your spouse or partner will be leaving the state in the immediate future, you can file a complaint for custody with the court. Along with the complaint for custody, you can file an emergency motion. By filing an emergency motion, you will be able to get before a judge within a day. If you are able to show the court that the child will be taken out of state and that this will cause harm to the child(ren), then you will likely get a court order which prohibits the other parent from absconding with your child(ren).
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(ren). 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.
The Law Offices of Lloyd A. Malech is located in downtown Bethesda, Maryland. For more than 25 years, Mr. Malech has provided aggressive and effective representation for his clients in Maryland and the District of Columbia. He has been honored with the Lawyers of Distinction Award Recognizing Excellence in the Area of Divorce and Family Law for the past three consecutive years and has just been recognized as a Family Law Top 10 Attorney for 2021 by “Attorney and Practice Magazine.” Visit Malechlaw.com or call (202) 441-2107.