What If My Co-Parent Is Moving Out Of State?

January 5, 2023 O'Connor Family Law Child Custody

Co-parenting situations can be complex and can change how you approach many other aspects of your life. You may not be as able to take a new job that requires a move, for example, or even make significant lifestyle changes that impact your schedule. At the very least, in these cases, you may need to talk things through with your co-parent to ensure their custody arrangements won’t be impacted so that you can reach an agreement on your move.

However, what if the other parent decides to move without consulting you? Can the mother or father of your child move out of state and take your child with them? The law clearly states they can’t do so without your permission or a court order.

Below, find out what typically needs to happen if a co-parent wants to move out of state, including how a family law attorney can help you protect your parental rights and the best interests of your child or children.

Can a Co-Parent Move Out of State Without Minor Children?

If you have been co-parenting and the other parent decides to leave the state without your children, they can do so. Of course, this can have a huge impact on you and your children and might result in significant changes to custody arrangements and general care for your kids.

For example, if the parents have shared physical custody and the kids alternate weeks at each parent’s house, this arrangement is not feasible if one of the parents moves out of state—or even a significant distance away within the same state.

In a best-case scenario involving this type of move, the parents discuss the change with each other and agree on a parenting schedule that works better with the new situation. For example, they might agree that the kids will visit all the long weekends and school holidays with significantly more time during the summer months.

In a more stressful situation, your co-parent moves without any discussion, leaving you to pick up the pieces. This can be emotionally and financially stressful. You and your children might feel abandoned in some ways, and you may have to scramble to make new arrangements for childcare, transportation to school or activities, and other details of life. In this scenario, it may be helpful to consult with a child custody attorney to determine if you should seek a new custody order or even a child support change.

Can a Co-Parent Move Out of State and Take Minor Children With Them?

According to Massachusetts law, one parent is not allowed to remove a child from the state after a divorce without the other parent’s permission or a court order. If a court order lays out a parenting schedule and custody, then unless there is an agreement, the parent who wants to move away should usually file in court seeking to move the children to another state prior to actually moving.

If you and your co-parent agree about child custody over state lines, they can leave the state with your child. Whether you’re the parent leaving the state or staying, getting any agreements in writing is necessary just in case the non-moving parent later tries to say they disagreed. You may want to involve an attorney or even get a court order to cement your agreement, especially if the parenting schedule changes and your child travels in and out of the state to spend time with the other parent.

If you don’t agree to the co-parent taking your child or children out of state, they can only do so if they get a court order. You can also petition the court to block the removal of your child from the state or request their immediate return if they have already left with your kids.

If you are the parent planning to move, it’s a good idea to file long in advance as most Judges will not allow for the removal on a temporary order. It is often seen as a trial issue, which requires the case to go through the entire legal process before the Judge makes an order allowing or permanently declining the removal.

What Factors Will the Court Use in Making a Decision?

Generally, the court prefers for both parents to live near enough to co-parent and raise the children together. However, it’s recognized that this isn’t always in the best interests of the child or children, and courts will make orders that aren’t in keeping with this preference in some cases. That includes orders allowing one parent to move children out of state.

There are two different legal requirements a Judge will look at within a removal case, and one starts with whether the parent wanting to move out of state with the children has primary physical custody or whether they share parenting time reasonably equally. Some of the factors courts consider in making such a decision include:

  • Whether or not the move will substantially benefit the child — for example, the parent has a much better job offer and can better support the child in a way that both parents together could not in the current situation
  • Whether or not the move will substantially and negatively impact the substance of a child’s relationship with either parent
  • The child’s preferences for living with a specific parent or in a particular location (though this may be more of a factor for older children)
  • The personal interests of the parents in supporting or not supporting the move — such as whether one parent’s objection is to punish the other parent and not because of real concerns over the child’s welfare

What do I do if the other parent moves away with my children?

If the other parent of your kids moves out of state with your kids or far enough away that it significantly impacts travel time or your parenting time, you want to take action immediately in court. The longer you wait to do anything, the less chance you have of ensuring your children are ordered back.

Most custody judgments will have a clause prohibiting either parent from permanently removing the child or children from the Commonwealth of Massachusetts without the consent of both parents or a Court Order. Even if you don’t have this clause, you can still file a motion seeking that the children be immediately returned to the Commonwealth.

Suppose your co-parent is telling you that they are going to leave with the children. In that case, you can proactively go into court ahead of the move to get an Order that explicitly prohibits the other parent from leaving with the kids just as a precaution. Discussing whether this is a good option for you with a family law attorney is an excellent idea.

What do I do if the other parent says they’re visiting family out of state on vacation with our kids but then refuses to return?

Unfortunately, we have seen this scenario play out a number of times. One parent says that they are going to visit their out-of-state family for a few weeks during the summer, but then informs the non-traveling parent that they are going to stay for an extra week or two. The next thing the non-traveling parent knows is that the kids are signed up for school in the other state, and the other parent is saying that they’re not returning.

If you’re dealing with this situation, you need to file in court immediately to seek the return of the children. Parents get into trouble if they do not take a proactive stance immediately when seeking court intervention. A delayed request to have the children return to Massachusetts can sometimes be interpreted as acquiescence or implied consent.

Every case is unique, and family courts consider many details when making such decisions. If you are attempting to block your co-parent from removing your child or children from the state, a family law attorney can help. Contact O’Connor Family Law today to find out how our team can help you protect your rights as a parent and support the best interests of your children.