My ex-spouse lives in a different state with our children. In which state do I file for a custody change?

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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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UPDATED: Feb 10, 2020

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Every state has its own set of family laws, and jurisdiction for resolving child custody disputes follows the residency of the child, so obtaining a more favorable child visitation schedule will require filing a child custody suit in the state where your child lives. The family code in that state will determine the extent to which you, the non-possessory conservator, can exercise visitation.

How and where you will file is governed by that state’s laws. Generally, you will file a child custody suit in the particular county’s court or family court. After a hearing, the court can set a child visitation schedule that includes regularly scheduled times for your visitation. For parents who reside 100 miles or more apart from the child, most orders will include set visitation times to ensure fairness and prevent conflicts. To save time and money, make sure that your final decree includes visitation provisions for residing both far away and closer to your child, so that you don’t have to re-modify your child visitation schedule in the event that you move closer to your children at a later date.

Enforcing Your Child Visitation Rights

If your ex-spouse violates the child custody order, you can file a motion for contempt or a motion to enforce your visitation rights. Additionally, if the state has a criminal offense for “interference with child custody,” there may be criminal remedies available if your ex-spouse does not comply with the visitation schedule outlined in your child custody order. The criminal proceeding is a separate criminal action filed by the district attorney’s office, arising out of the violation of the civil order setting out visitation.

If your ex-spouse continues to willfully abuse and violate the visitation schedule, you may be able to petition the court to reverse the custody arrangement and shift custody of the children to you. Whether violation of the court’s order will be a sufficient basis for modification will depend on the laws of the state. Contact a family attorney where your children reside to learn how the family code in that state applies to your specific situation.

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