Can my son’s mother move my child to another state?

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Can my son’s mother move my child to another state?

My son’s mother and I were never married. I caught her cheating on me and we split. We came up with a visitation agreement which changes often with my job. I pay my child support, I help with clothes and sports and I spend as much time with him as possible. I even call in sick if the company won’t let me off. I even take his sisters (they are not mine) when she needs a sitter. So I am a big part of the kids lives. Now here is the question. She filed for divorce a month ago and her kids have told me that she already has a boyfriend that stayed with them for a week in her new place. He’s from out of state and now their mother is talking about moving there. This would have a huge impact on my son and I. Can she do this?

Asked on January 5, 2013 under Family Law, Minnesota

Answers:

Matthew Majeski / Majeski Law, LLC

Answered 8 years ago | Contributor

Do you have a court order granting you the visitation and/or custody rights?  If you don't, then she may take your son wherever she wants.  If you have either of those, she will either need your permission or will need to go to court to be able to move your son to another state.

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

Answered 8 years ago | Contributor

Do you have a formal visitation agreement through the court? If so, she cannot relocate without it's permission. If she does she can be charged with parental kidnapping and contempt of court. If this visitation agreement is simply something that you and your wife worked up on your own, then she is free to leave the state at will with your child. Therefore regarding a private agreement, you will need to go to court to request custody or visitation, ASAP. You want to do so before she establishes residency in her new state; otherwise you will have virtually no chance of getting her to move back. If you go to court now, you have a greater chance of keeping your child local. Once there is a legal custody agreement, your wife will need to get the court's permission to move.

Ina case such as yours, the burden is on the party seeking to relocate; the court will look at the best interests of the child in making its determination as to whether or not to allow a move. While each petition is reviewed by the court on a case-by-case basis, there are generally certain factors the it must consider in determining whether removal is appropriate.

Such factors include, but are not limited to:

  • The motivations of the parent seeking the relocation (i.e. moving due to a job, new spouse or to care for a sick relative will have a stronger case than a parent who simply wants to move away from the non-custodial parent).
  • The motivation of the parent opposing the move.
  • The advantages/disadvantages of relocation on the life of the child.
  • The likelihood that a reasonable visitation schedule can be arranged which will preserve the parental relationship with the non-custodial parent.
  • The likelihood that the parent desiring the move will comply with visitation orders after they have left the state.

At this point, you should consult directly with a local attorney.

Tricia Dwyer / Tricia Dwyer Esq & Associates PLLC

Answered 8 years ago | Contributor

Hello. The matter of an out of state move by a parent is a common legal issue for my work as a family law attorney.  I am wondering if your parenting time agreement is a private agreement made between you and the mother, or, instead, a court order for parenting time.


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