Moving away after a divorce is cathartic; you put the past behind you and move on with your life. When you have kids, things are more difficult. But if you do want to move, you may have wondered “can my ex-husband stop me moving out of state with the kids?
Generally speaking, your ex-husband can try and stop you from moving out of state with the kids. Whether or not he succeeds, though, depends primarily on your physical custody status, the relocation clause in your divorce, and what state you are moving away from.
The rest of this article will explain what steps you need to take before moving out of state with your kids.
We’ll explore how different custody statuses affect your ability to do so.
But I will also discuss factors courts consider when deciding and why the courts or judge may deny your request to relocate to a new state.
Steps You Should Take To Move Out of State With the Kids
Each state, court, and divorce have different rules and regulations when it comes to moving or relocating with your children.
Here are five general steps to take to move out of state with your children:
- Decide where you are moving to. Before doing anything else, decide exactly where you are planning to move. This will make it easier when you speak to your ex-husband and possibly the courts, letting them know that you intend to move out of state with the kids.
- Talk to your ex-husband. No matter what type of custody you have with your ex-husband, you need to tell them about the plan to move. Since you will be moving out of state, custody agreements will need to change. You also need to give him enough warning so you can go to mediation if necessary.
- Check your custody order. You probably already know if you are your children’s sole custodian or joint custodian. Double-check your custody order anyway to verify your children’s primary custodian.
- File a notice with the court. If you’re your children’s sole custodian, you only need to file a written statement with the court. Check your state’s laws on when notice must be given to the court (usually between 45 to 60 days before the move). If you and your ex-husband are joint custodians of your children, you need to file a “move-away” order so your custody arrangements can be rewritten to accommodate the move.
- Attend your hearing. After you’ve filed your notice, there will be a hearing on whether or not the court will grant your relocation request. After the hearing, if the judge denies your request, you likely can still move, but probably not with your children. If the judge approves it, the new custody arrangement will be finalized for you to file with the county clerk.
For more information on your state’s child custody and relocation laws, DivorceNet has some great information.
How the Type of Custody You Have Changes Whether or Not Your Ex Can Prevent You From Moving Out of State
There are two types of custody:
- Legal custody. It refers to who decides on the child’s health, welfare, and education.
- Physical custody. This refers to where the child physically lives.
It is widespread for parents to get joint legal and physical custody but have one parent, most often the mother, named the primary physical custodian of their children.
In this section, I will be discussing physical custody, not legal custody.
One of You Has Sole Custody
When granted sole physical custody, a child lives with a single parent, the custodial parent. The other parent, or noncustodial parent, is granted visitation rights.
In recent years, courts have begun to stop awarding sole custody so the child can spend time with both of their parents. Sole custody is commonly granted only when one parent is deemed unfit or unworthy, often due to drug, alcohol, or physical abuse.
You Have Sole Custody
In most cases, the parent with sole custody has a “presumptive right” to move out of state with their children.
As I said before, before you move out of state with your children, speak with your ex-husband and let him know your plan.
After all, unless he was abusive or a deadbeat dad, he deserves to be in his children’s lives.
Suppose he agrees that it is in the best interest for your kids to move with you, great! Go to an attorney to help write up a new custody arrangement to best prove to a judge that he will have the required visitation he was awarded in an acceptable way.
If he does not agree that your children moving away with you is in their best interest, first attempt mediation to agree without having a court battle. If mediation fails, the best thing for you to do is go to the courts and file a motion asking permission from the courts to move out of state with your children.
If you get the motion filed quickly enough, you may not need to deal with him challenging your custody of the kids.
He Has Sole Custody
Suppose you are a noncustodial parent and wish to move out of state with your children. In that case, you first must contest the current custody agreement, also known as filing for custody modification.
This means that you have to prove to the courts that your ex-husband is unfit to be the sole caretaker or that becoming your child’s sole custodian is in your child’s best interest.
Although you have already been denied sole and joint custody, this is tricky to prove, and most custody modification cases are rejected. If you choose to go this route, speak with your attorney first to decide on the best way to go about it.
If you win your custody modification case, let your ex-husband know of your plans to move out of state with the kids if you haven’t already. Then, follow the steps I laid out above.
You Both Have Joint Custody
As most divorced couples are awarded some form of joint custody, you will most likely have to deal with filing a “move-away” order.
Of course, before filing the order, talk to your ex-husband and see how he feels. Once again, if he agrees that the move is the best thing for your kids, fantastic! The court hearing will go much more smoothly.
Filing a “move-away” order can be terrifying.
You are asking the courts to rewrite your custody privileges completely. After examining how you parent and what life will be like for your children wherever you move, they very well may decide that your kids cannot go with you.
It doesn’t matter if you are already the primary physical custodian.
If your hearing goes poorly and you are denied, your children cannot go with you when you move, and your ex-husband will have custody. To prevent this from happening, collect as much compelling evidence as possible, proving that your children’s lives will be better if they move states with you.
But also think about what is actually best for the kids. Their needs have to come first. Will they truly be better off moving away from their dad?
Remember, the outcome of the “move-away” order is determined by how your kid’s quality of life will be.
What Factors Do the Courts Consider When Deciding if You Can Move to Another State With the Kids?
There are no set-in-stone factors that all courts consider when deciding if a child should move somewhere with one of their parents. Every case is different, as every person is different. There are, however, some factors that are often taken into consideration.
Let’s look at these factors now:
- The reason for the move. Did you just get remarried? Were you offered a job with a higher income than you previously had? The amount of income each parent receives is taken into consideration. Which parent can provide for their child better?
- The child’s involvement with both parents and any siblings. Does your child have a better relationship with you than your ex-husband? Or do they have a better relationship with your ex-husband? If your child is of a specific age and maturity, the courts may ask them which parent they want to stay with.
- Are there better educational opportunities? The court’s primary concern is the quality of life they have. Having better educational opportunities may aid a child in living a better, more fulfilling life.
- The child’s needs. Does your child have developmental or medical issues or conditions that would affect them adversely if they move? If the move would harm them in any way, they may not be permitted to move with you.
- The parent’s relationship with each other. Do you get along with your ex-husband? Hostility between parents may affect the court’s decision.
- History of domestic violence or abuse. As I’ve stated numerous times, the child’s quality of life is the most important factor in the court’s decision. A history of abuse from either you or your ex-husband will most likely affect the decision.
- Which parent is the primary caretaker? If you have been the primary caretaker since the divorce and have proved that you are competent, especially if your ex is less competent, there is a better chance that the hearing will go your way.
- Whether there’s extended family or a support system. Are you moving back to your hometown, where your parents and/or family live? Will there be more people able to help in raising your child? This is important, especially when your child is younger.
- Each parent’s job and housing security. Does your ex-husband have a better job and housing security than you, especially since you are the one moving?
- How the move would affect visitation. Would visitation become more complicated if your child moved states? Does your ex-husband refuse to use alternative visitation methods, such as Zoom video calls or texting? As visitation is a right to each parent, how it is affected must be considered.
- How far away are you moving? Are you moving across the country or just across one state line? How would moving across the country affect your child differently than if you were crossing one state line?
- Any other benefits to the child. Are there any other benefits to your child if they move to another state?
Why Would the Court Deny the Motion To Move to Another State?
After evaluating the evidence, the court will then decide whether the reason you are moving is in “good faith” or “bad faith.”
If they determine you are moving in “good faith,” they decide that the move is for a legitimate reason. Your move would benefit your child, perhaps even improve their life in some way, through either better educational opportunities, a better support system, or even the opportunity for you to continue your education.
The court would deny your motion to move to another state if they determine that you are moving in “bad faith” or think the move is to spite your ex-husband in some way. Maybe you are trying to prevent your ex-husband’s time with his children in retaliation for him cheating on you.
Another reason the court may deny your motion to move to another state with your children is even though your reasons are in “good faith,” your children would have a better life living with your ex-husband.
Or they decided that your children cannot handle the move to another state due to emotional, psychological, or medical needs.
Can a Judge Overrule Your Ex’s Permission for You To Move to Another State?
Say your ex-husband agreed to you moving to another state with your children. You two created a new custody plan with an attorney.
Can a judge still deny the request?
Technically, a judge has the right to deny a “move-away” order, even if the noncustodial parent agrees to the move. Rarely will a judge deny a “move-away” order when both parents agree, but it could still happen.
The main reason a judge would deny a request when both parents agree would be if the judge thought there was some form of inequity happening or that the move itself was not in the children’s best interest.
Technically, your ex-husband can stop you from moving out of state with your children.
If he is successful in his attempt depends on your physical custody status, what is written in your divorce custody clause, and what state you are living in.
Suppose you are the sole or primary caretaker of your children. In that case, you have a much higher likelihood of being allowed to move out of state with them than if you are only allowed visitations.
Of course, I have to add that I am not a lawyer, nor do I know the laws in your state or country. I am, however, divorced (twice) and have recent experience going through one. However, my comments and articles should not be taken as legal or professional advice. If you need legal or professional advice you should consult a professional in your area.