Can I leave the state with my children before my divorce and would it be considered kidnapping?

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Can I leave the state with my children before my divorce and would it be considered kidnapping?

I’m in the process of moving from not paying my rent due to my soon to be ex-husband who refuses to pay my rent. I’m collecting SSD and it’s not enough to pay my rent just bills. I have no family where I reside. Can I leave out of state to go where I have family to get help before my divorce and would it be considered kidnapped?

Asked on December 16, 2011 under Family Law, New Jersey

Answers:

L.P., Member, Pennsylvania and New Jersey Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Thank you for your question regarding moving with yourchild out-of-state without the permission of the child’s father.  The laws governing child custody and child visitation may change greatly depending on the laws of the state in which you reside.  While your state may not technically call it “kidnapping” for you to travel with your child out-of-state, this may not give you a good look if the child’s other parent petitions the court for custody.

While state laws will be different, all states utilize the best interest of the child test.  This means that the court will determine custody for the child in examining the best interests of the child.  This does not always mean the best interests of the parents.  The judge could ask you if you attempted to get permission from the child’s other parent before moving out-of-state or attempted to work out a visitation schedule with the child’s other parent since you would be moving out of state.  Even though you may be having financially difficulties, the court may not see this as justification as you cutting off the relationship of your child and the other parent.

In fact, in most custody cases, the court will look to the parent that is most likely to support the relationship of the child and the other parent.  The court wants to ensure that the child is able to have a relationship with both parents, bearing no signs of neglect or abuse.

If you need further assistance, you may find it helpful to contact a family law attorney in your area.

 


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