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My Spouse Has Left with the Children: Now What Do I Do?

It is a very common scenario during the breakup of a marriage that one of the parents will move out of the family home with the minor children. Sometimes this will happen with the consent and approval of the other parent. Often, however, the moving parent has decided on his/her own to leave with the children. What many do not realize is that the steps taken by the parent who is left behind can have a major long-term impact on the court’s custody and visitation orders for the minor children.

A decision to move with the minor children typically is not viewed favorably by a family law judge, if the decision was made unilaterally (i.e. – independently, without the consent of the other parent). All else being equal, the court strongly prefers for children to stay in the same family home (and school). This provides them continued stability during an otherwise chaotic time and prevents major disruptions in their community and academic pursuits.
If a parent unilaterally decides to move away with the minor children, the other parent should seek immediate relief in family court. Most jurisdictions will permit you to request an emergency procedure known as a temporary restraining order, or TRO, in child custody cases. Essentially, the TRO is used in emergency situations to maintain the status quo, temporarily, while other issues are sorted out. This form of relief is used in divorce cases because it can help prevent some sudden thorny issues from having lasting negative effects on a parent-child relationship. Even if your request is denied, the process of seeking immediate relief puts the court on notice that you, the filing parent, never consented to the move and don’t believe it to be in the best interests of your minor children.
If you don’t seek immediate court relief after a unilateral and unapproved move like this, there may be consequences. If, when the move occurred, divorce proceedings were not already pending, then it may take months before the court makes any custody decisions. In this time, the children’s status quo could have changed from living with you in your current situation to being adjusted with the moving parent in a new home and school. If this is established as fact, then the court will hesitate to uproot the child again, even though you did not approve of the initial move.
Furthermore, the parent who does not file for relief after a unilateral move creates the appearance of having consented to it. If the parent tries to persuade a court months later that the move was detrimental to the children, the court may dismiss the parent’s concerns on the grounds that had the parent really been concerned, s/he would have sought court intervention promptly. In contrast, a parent that immediately files for custody orders under such circumstances - including using emergency measures such as a TRO – effectively communicates that the move was neither agreed to nor in the best interest of your children, as you see it.
Even if you both agree to allow one parent to move away with your children, it is still a good idea to seek temporary custody and visitation rights before consenting to the move. This helps preserve your custody and visitation rights throughout the process and after it as well. If the moving parent does not cooperate on permitting visitation later on, this will help protect your right to have the court enforce your agreed custody schedule. And even where the moving situation is consensual, the ability to get favorable custody and visitation orders for you is improved when immediate relief is sought, rather than seeking orders after the children are clearly settled in the new city and school. Pursuing emergency relief will save you both a lot of headache and maybe even some heartache in future hearings and beyond.