If I’m still legally married but we are separated, can I move out of state with our child?

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If I’m still legally married but we are separated, can I move out of state with our child?

Asked on November 29, 2012 under Family Law, Texas

Answers:

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

Answered 8 years ago | Contributor

So long as there is no court order in affect, then you can take your children out-of-state (unless you have a separation agreement and it provides otherwise). However, your husband can go to court and obtain an order which will require you to return with the children. If you don't return, you can be charged with parental kidnapping.

Therefore, the best thing for you to do is to obtain legal custody of the children by filing in court first. If a judge finds in your favor, you will get a temporary order of custody (a permanent order will be issued when your divorce is finalized). In determing whether or not you can move out-of-state, the court will consider the bests interests of your child.

Note: You could file for custody once you re-establish residency in your new state (but that takes time, typically 6 months). In the meantime, as pointed out above, your husband could file first and force you to return.


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