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Can I Move Out of State With My Child?
An attorney shares how it’s safe and legal to move children in order to protect them from an abusive parent
- Feb 06, 2023
In general, temporarily relocating out of state can be an option for protective parents with an abusive partner, but there are important risks to consider–and rules for taking children out of state.
Parents who leave the state with their children should understand that they can and likely will be required to return to the original state at some point in the future. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted in all states other than Massachusetts (though Massachusetts follows a similar scheme), jurisdiction over child custody matters is generally found in the child’s home state. That is, the state where the child resided in the six months prior to the filing of a custody action. If a parent relocates to a new state with their children, the remaining parent may petition the court in the original state for the return of the child.
Abuse Is a Valid Reason to Move Children, But May Only Hold Temporarily
The reason that a parent leaves the state with their children can be important. In general, courts disapprove of parents leaving the state for the specific purpose of avoiding the other parent. However, there are important exceptions to this rule when abuse occurs. Under most states’ laws, UCCJEA includes an emergency exception to the “home state” rule for children who have been abused. That means relocating to a new state to prevent a child from being further abused can be a valid basis for relocation. Multiple states’ version of the UCCJEA extends this emergency jurisdiction to domestic violence cases in which a parent has been abused or threatened, even if the child was not physically abused.
If your case concerns child or intimate partner abuse, it may be valid to relocate to a new state in order to stay safe. Please note that even when a destination state grants emergency jurisdiction over child custody on abuse grounds, this jurisdiction is often temporary. In many instances, the relocating parent will need to participate in the legal process in the original state as well as the destination state. This can make relocating under these circumstances both costly and stressful.
An important factor in such cases may be whether the fleeing parent has obtained an abuse prevention order (also known as a restraining order or protective order) in either the new or original state. A restraining order which establishes the presence of abuse can have a major impact on how a judge views child custody issues. Without a restraining order (or criminal charges), the fleeing parent will likely need to convince the judge who decides child custody that there was abuse in order to access the emergency provisions of the UCCJEA in that state.
A new state may decide that jurisdiction is more appropriate in that state rather than the original state. This determination is often based on the child’s history in the state or the people who lived there. For example, if the child previously lived in the destination state, or has an extensive support system or family in that state, a court in the destination state is more likely to assert jurisdiction over child custody matters. Even in cases involving extensive connections and support systems for the child in the new state, final jurisdiction over child custody may return to the original state.
Finally, it is important to distinguish between jurisdiction and the more substantive questions surrounding custody and parenting time. Just because the original state asserts jurisdiction over child custody, this does not guarantee that the judge in the original state will make parenting orders that favor the parent who still resides in the original state. Similarly, just because a destination state accepts jurisdiction over the child, this does not guarantee that the new state’s judge will not eventually order a parent to return to the original state. The judge could make orders for the remaining parent to have extensive parenting time, which might be complicated, depending on the distances involved.
In short, the emergency/abuse exceptions to the UCCJEA (which, again, vary from state to state) can offer a parent fleeing abuse important tools, including time to escape the abusive situation. In the end, however, the parent will generally need to convince at least one judge (if not more) that their position on custody, visitation and parenting time is appropriate.
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Questions to Ask Yourself Before Moving Your Child
With all this in mind, parents fleeing an abuser with children should consider several questions:
- Does the parent have friends, family, history, or community in the new state that can provide the parent/child with temporary housing and other resources such as childcare?
- Was the child abused? If so, there is likely to be broader protections in the new state.
- Was the protective parent the sole party to be abused or threatened? If so, the protections available by the new state could be more or less extensive or limited, depending on the laws in that state.
- Does the parent have significant evidence of abuse to show to a judge? The quality and credibility of evidence and allegations matters in every case.
- In either state, has an abuse prevention order/restraining order on behalf of the parent or child been filed? Such orders can have a major impact on the underlying child custody issues.
- Is the parent prepared to engage in legal proceedings in both the new state and the original state? Hiring an attorney in both states can be costly but is often necessary due to the complexities involved.
- Will the parent be prepared to return to the original state on short notice, if they are ordered to do so by a judge in either state?
For more information on leaving an abuser when children are involved, including making a safety plan, read “How to Escape an Abuser With Your Children.”
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator and conciliator for South Shore Divorce Mediation and the editor-in-chief of the Lynch & Owens blog.
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