Can I move out of state with my children if my husband and I are separated?

UPDATED: Sep 30, 2022

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Can I move out of state with my children if my husband and I are separated?

My husband and I got married and had our 2 children. He then moved to another state for a job while the kids and I stayed back home. He started a talking relationship with a female co-worker, so I moved with the children to try to save our marriage. He continued his relationship with this woman and it soon escalated to an affair. His behavior began to get worse and he abused me in our home while the children were sleeping. We are now separated and she lives with him in our old home; I got a new rental place. I have been considered a resident here for 1 year and 2 months but I have no friends or family. I still have a great relationship with my in-laws who live back in our former state of residence.

Asked on November 25, 2015 under Family Law, North Dakota


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

First of all, are you legally separated? If so, your separation agreement might address the issue of a move. If you are not leally separated, then you can move to another state with the children at any time. However, at that point, your husband could file for a temporary custody of the children. You woud then be legally obligated to return with them. If you failed to do so, then you could be charged with parental kidnapping.
Frankly, while you could move back and possibly have time to establish residenty there and file for divorce, your husband might not let that happen. Again, he could file for temporay custody in the state in which he now lives. Your best bet is to go to court and file for temporary custody first. There is no guarantee as to what will a judge will decide but you might have a chance of being able to move back with your children. Once your divorce is in process you could file for permanent custody.
Since this can all get complicated, you should consult directly with a divorce attorney in your area. They can best advise you further.

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