Question about relocating when married

[isis297]

State: NY, but asking in general

This is not a personal situation but one that came up in discussion and it made me wonder the law when I read some advice being given that was concerning.

If a couple is married, and one parent takes their children out of state to visit family, is it legal for them to just decide not to return home with the children? The parents are married and listed on the birth certificate.

 

[stealth2]

State: NY, but asking in general

This is not a personal situation but one that came up in discussion and it made me wonder the law when I read some advice being given that was concerning.

If a couple is married, and one parent takes their children out of state to visit family, is it legal for them to just decide not to return home with the children? The parents are married and listed on the birth certificate.

They can expect to slapped with a divorce & custody filing - plus a request for an order to immediately return the children. And no, te moving parent cannot file in their new state until/unless they meet residency requirements.

 

[LdiJ]

State: NY, but asking in general

This is not a personal situation but one that came up in discussion and it made me wonder the law when I read some advice being given that was concerning.

If a couple is married, and one parent takes their children out of state to visit family, is it legal for them to just decide not to return home with the children? The parents are married and listed on the birth certificate.

Yes. It would be up to the other parent to take the situation to court and to ask that the judge order the parent to return the children to the home state. The judge would make that decision based on the best interests of the children, but in many, maybe even most cases the judge would make that order.

However, the parent doing that is not doing anything illegal. Both parents have equal legal rights to their children. One parent's rights do not trump the other parent's rights until a judge says otherwise.

 

[not2cleverRed]

It is "legal" for them not to return. But it is also legal for the other parent to take legal action to establish the residence the children's residence as back in the community where the marital home was located.

As you are in NY, you should look into more on the story of Greg Fischer of Calverton and his 2 children. There are numerous updates over the years, although things seem to have died down since 2015 .

However, "it depends" is perhaps the best answer. As in, it depends on the distance, how much the other party is willing to do to assert their parental rights, etc. However, it is ill-advised to simply flee the state.

If there is abuse, stay in state (preferably in county) and get the restraining order first, then see whether it is possible to get court orders allowing the children to be moved out of state.

 

[zddoodah]

Yes. No law governs the living arrangements of married people and their kids. However, that means that the parent who remains in the original state could just go pick up the kids and return to the original state. Also, it's possible that the remaining parent could file for divorce in the home state and obtain a court order requiring that the other parent return the children.

 

[LdiJ]

Yes. No law governs the living arrangements of married people and their kids. However, that means that the parent who remains in the original state could just go pick up the kids and return to the original state. Also, it's possible that the remaining parent could file for divorce in the home state and obtain a court order requiring that the other parent return the children.

The bolded however is something that I do not recommend unless there a judge has already made a court order that the children are to be returned to the home state.

Why? Because the parent who has the children isn't just going to sit back and let them be taken. Nor is the family that the other parent is with going to sit back either. So, what ends up happening too frequently is that either the parent attempting to retrieve the children has wasted their time because they have no leverage to force the other parent to release the children to them, or, even worse, that the parent attempting to retrieve the children ends up arrested for domestic violence because they try to physically force the issue. It is pretty much a no-win situation without that court order. And...since the court orders are usually pretty easy to get, it is just more sensible to get one first.