Can One Parent Take a Child Out of State Prior to Divorce Filing?

By Bryan Driscoll, J.D.

Can One Parent Take a Child Out of State Prior to Divorce Filing?

By Bryan Driscoll, J.D.

It's understandable to want to put physical distance between you and your soon to be ex-spouse. But, during divorce and custody proceedings, courts look at the value added to a child's life when both parents are present. Moving out of state before filing for divorce could hinder your child's relationship with their other parent.

Young boy sadly resting his chin on his crossed arms on a table while his parents argue behind him

Thus, the general rule is that you can't move to another state prior to filing for divorce or while your case still pending. Usually, the only circumstance in which you could move out of state with your child is if your spouse agreed. There are a few exceptions, such as domestic violence, as well.

Custody of Children

Each state has its own laws regarding the custody of children. When you've decided that divorce is right for you, make sure you understand your state's custody laws.

It's best if you and your spouse can agree on shared parental responsibility. But that isn't always the case—you may even want sole custody of your child.

However, courts in every state are looking for the same thing: the best interests of your child. Many states start with the assumption that both parents need to be in their child's life and that requires them to live in the same city. If you can prove to the court it's in your child's best interest to move out of state with you, the court may grant your request, but it doesn't have to do so.

Legally Moving Before Your Divorce Is Final

To make a request to move out of state with your child after you've filed for divorce but before it's final, you need to take several steps:

  1. File a motion with the court. If you think you have grounds to move with your child before the divorce is complete, file a motion demonstrating them.
  2. Attend the hearing. The court will not rule on your motion until it hears from both you and your child's other parent. You must present reasons you should be allowed to move out of state. Your child's other parent will likely present reasons you shouldn't.
  3. Adhere to the court order. If the court grants your motion, the order includes information regarding time your child must spend with their other parent. If you violate these terms and refuse your child time with their other parent, the court may revoke the order.

Uniform Child Custody Jurisdiction Enforcement Act

The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) has been adopted by every state except Massachusetts, as of May 2019. The UCCJEA prevents one parent from moving to another state with their child hoping to get a more favorable outcome on custody.

The UCCJEA has a home state rule. This home state rule says that any initial custody determination must be made in the state where the child has lived for the six months leading up to a divorce filing.

There is a lot to consider when filing for divorce and deciding on custody of your child. It's not a decision to take lightly. By understanding your state's laws and following the guidelines, you can make sure the best interests of your child are always met.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.