What can I do if my wife took our kids out of state without telling me and will not come back?

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What can I do if my wife took our kids out of state without telling me and will not come back?

Asked on May 31, 2011 under Family Law, Tennessee

Answers:

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

Answered 10 years ago | Contributor

Do you have a legal separation or some sort of existing custody agreement?  If so, then that will control this situation  If an out-of-state move is not addressed in any existing documentation then you will have to go back to court to straighten out this situation (if you and your spouse cannot reach an agreement).

However, if there is no court order in affect, she can take your children out-of-state.  But, you could go to court in TN and obtain an order which will require her to return (with the kids).  If she fails to then return to the state she can be charged with parental kidnapping. 

The best way for you to obtain legal custody is for you to go to court first.  If you get a temporary custody order from the court (a permanent order will be issued at such time as a divorce is filed and finalized).  In deciding who gets permanent custody (and whether or not your wife can move out of state with the children), the court will consider "the bests interests of the children".  

Note:  Don't wait too long to go to court. Under the Uniform Child Custody Jurisdiction & Enforcement Act ("UCCJEA"), which is the law in 48 states, once the children have been in another state for 6 months, that becomes their "home state" and any custody case would have to be heard in the courts there. 


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