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Divorce get complicated when kids are involved. It's difficult enough when you're trying to resolve basic custody issues with an ex who lives across town. But what can you do if your ex-spouse is moving away and wants to take the kids away, too? Can you stop this from happening?
While most lawyers will try to include terms in a shared parenting agreement that describes how vacationing and relocation will be handled, all too often, custody agreements are silent as to these matters. Also, when parents do not share legal or physical custody, the non-custodial parent may not have as much of a say, depending on the state, even for a permanent relocation. To complicate matters further, each state handles custody matters according to state law, so different states can reach different results with the same facts.
Generally, however, a parent can seek to petition the court to modify or enforce a custody order to address changed or changing circumstances.
Stop the Vacation
Stopping your ex from taking the kids on vacation might not be possible if there is a joint custody agreement. However, if there are serious concerns of a potential parental kidnapping, or injury to the children, then seeking the court's intervention at the earliest possible time could stop your ex from travelling with the children by requiring the children's passports be taken away, or by having an emergency custody court order put in place.
If your custody agreement is silent as to vacationing with the children, you will need to petition the court for a modification of custody if you want to prevent your ex from taking the children on vacation. Additionally, while being provided notice would be courteous and prudent, unless it is required by the order or agreement, it may not be required at all.
A parent with visitation only, and no legal or physical custody, may still be able to prevent the custodial parent from taking the children out of state if the vacation interferes with the visitation schedule. However, it will require a petition to the court that includes a compelling reason explaining how denying your child a vacation is in their best interest.
Changing Permanent Residence
When there is joint or shared custody, moving the permanent or primary residence of the children out of state can be stopped. Even though a parent may be moving in order to improve their financial situation for the sake of the children, if the other custodial parent objects and can show it is not in the child's best interest, a court can order that the children not be moved out of state. Alternatively, the moving or non-moving spouse may petition the court to modify the custody order based on the move, and seek to get full custody.
While petitioning the court will usually be allowed to request a modification, oftentimes, the simplest route is to open a dialogue about what is best for the children and attempt to reach an agreement without resorting to the courts. The parents may wish to engage a mediator or a collaborative family law attorney to help.