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

By Wayne Thomas

When spouses can no longer live together and are divorcing, they often want to put some distance between themselves. In some cases, spouses move out of state even before the divorce is finalized. However, parents of minor children are not necessarily free to move anywhere with a child and file for divorce. Furthermore, most states have enacted specific laws aimed at preventing the kidnapping of children and enforcing custody orders across state lines.

Overview of Custody

States are free to enact laws regarding the custody of minor children. When married couples are either separated or pursuing a divorce, most states hold that both parents have custody of the child until a court order is entered stating otherwise. This applies to both the ability to make major decisions regarding the child, known as legal custody, as well as where the child spends the night, known as physical custody. In Florida, for example, physical custody is deemed shared between married parents even if the child spends a majority of his time with one parent leading up to the divorce.


To prevent conflicting custody orders and keep parents from moving with a child out of state for the sole purpose of obtaining a favorable ruling, most states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. UCCJEA limits parents to filing for an initial custody determination in their "home state," and requires other states to honor the orders of other states.

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Home State

For the purposes of jurisdiction under UCCJEA, the home state for an initial custody determination is where the child has resided for the previous six months leading up to the divorce, so long as one parent continues to reside in that state. For example, if a child has lived in Maine for five years, but the mother moves to New York with the child and immediately files a divorce action there, the father has six months to move for dismissal of the custody portion of the case on the grounds it must be filed in Maine, provided he still lives in the state. Further, if the father files for divorce in Maine within the six month period, a court could order that the child be removed from New York and returned to Maine.


UCCJEA has additional provisions for situations involving domestic violence or other emergencies. If the child is present in the state and has been subjected to abuse, abandoned, or the court finds another emergency exists and the child is in immediate need of protection, it may exercise jurisdiction and make an initial custody determination. However, the order is temporary and will last only until the home state issues an order. If the home state does not act, the emergency order becomes final and the state where it was issued becomes the home state.

Unclean Hands

UCCJEA contains additional protections if one party has engaged in unjustifiable conduct in order to secure home state jurisdiction. A parent who has acted in this manner is said to have "unclean hands," and a state that would otherwise have jurisdiction may refuse to exercise it. An example might be if a parent takes a child to another state and willfully withholds this information from the other parent for six months in order to establish jurisdiction and obtain a favorable custody order.

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