What happens if the non-primary parent gets the primary parent’sconsent to movea child out-of-state but the primary later changes their mind?

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What happens if the non-primary parent gets the primary parent’sconsent to movea child out-of-state but the primary later changes their mind?

My husband and I are moving with his son to TX. The child’s mother agreed to let us take him but now she will not file the paperwork to modify the divorce agreement. Currently she is the primary parent of the child, but they have joint custody. We are supposed to be switching my husband to primary. If the divorce agreement isn’t changed for my husband to be the primary parent, can we still take his son to live with us in a different state? We are concerned that if we don’t have it legally changed she will try and hold him in contempt. Should we be worried?

Asked on July 16, 2011 under Family Law, Maine

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The current primary parent has every right to change her mind about allowing her ex husband to take her child to a different state and become the primary parent. For whatever reason, she changed her mind and decided she will not agree to amending the divorce decree, support and custody agreement. You can certainly attempt to bring this motion on your own but your husband will have to prove she is an unfit parent for the court to even consider the motion. Further, the court's main concern is the health, safety and welfare of the child and if that means ensuring both parents reside in the same state, it will assert itself. If you do take the child and the original order is not amended, then yes, you might be contempt of court and worse, could be charged with kidnapping. This is all of course dependant on what the divorce decree states, and while you indicate your husband and his ex wife have joint custody, does the decree further discuss with whom the child must currently reside? If so, that would be the key in determining if your husband would be in contempt. Try consulting with a family law attorney and see if a civil arm's length discussion with the ex spouse would be helpful and fruitful in changing her mind. If not, you may just need to weigh the consequences of moving versus staying in the same location.


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