How Does Moving Out of the Family Home Affect Child Custody?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 14, 2021

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Leaving the marital home during a divorce may affect your rights with your children.  A parent that moves out risks their rights when it comes to custody and visitation and leaves their relationship with their children at the mercy of their spouse.  If you need to leave, know your rights and leave armed and prepared with a plan in place and your attorney at your side.

The pressure created when both parties continue to live in the family home during the divorce processcan make moving out seem like a good idea. Moving out also avoids conflicts, the possibility of fabricated abuse allegations, and further stress upon the children. Though it may be a reasonable option, the decision to move from the family home can have a negative impact on custody prospects for the parent who does move out.

When one parent moves out, the children usually remain in the family home with the other parent. Family law judges tend to prefer this arrangement because it is less unsettling for the children and promotes stability when their residence and school remain unchanged. Judges generally do not look favorably when a parent decides to remove the children from the family home.

Once a parent leaves the family residence without custody orders in place, that parent’s time with the minor children is set by the other parent, and the parent who remains in the family home often makes it very difficult for the other parent to visit. Most family law judges value preserving the status quo and creating stability for minor children. If, for whatever reason, the minor children have spent most of their time with the parent living in the family residence, many family law judges will continue this trend despite the negative impact on the other parent’s relationship with the children.

A parent who has moved out may be able to establish that the move was for reasons that were in the best interest of the children, such as, shielding the children from acrimony between the parents. This combined with evidence that the other parent frustrated frequent attempts to visit the minor children, may lead a judge to issue more favorable custody or visitation orders.

The process of interfering with the parent-child relationship is referred to as “parental alienation.” Parental alienation occurs where the custodial parent tries to eliminate the non-custodial parent from the child’s life by preventing visitation and/or disparaging the other parent in front of the child. Intentional parental alienation can be difficult to prove, and even if it can be proved, once the children become accustomed to a certain custody schedule changes are difficult

To protect future visitation rights, a parent who moves out should retain an attorney and request custody/visitation orders immediately upon moving. By filing immediately, the judge is put on notice that a lack of visitation of the minor children is not a product of parental apathy. This will make it much easier for the parent who has moved to obtain a reasonable timeshare with the minor children. Under certain circumstances, an attorney may even be able to file an emergency request for temporary visitation orders so that the non-custodial parent has time with the children guaranteed by court order from the beginning of divorce or custody proceedings.

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