Can My Ex Leave the State With Our Child?

Posted in Best Interest of the Child,Child Custody,Co-Parenting,Family Code on June 25, 2020

A divorce case involving kids is complicated. The parents or courts will come up with a custody agreement each spouse must obey. If one spouse breaks the terms of the agreement, it can lead to serious criminal repercussions. Leaving the state with a child, for example, could be against the custody agreement and the law depending on the situation.

Custody and Parenting Time Agreements in California

Whether or not your ex-spouse can leave the state with your child depends on the terms of your custody agreement. It can also depend on your relationship with your ex-spouse. In general, the parent wanting to take the child out of state will need the other parent’s permission if they share custody, especially if it will interfere with the other parent’s right to visitation.

If your ex-spouse claims he or she could not find you to ask for permission, your ex-spouse will need to go to court for permission instead. A judge in California will have to agree to let your ex-spouse take your child out of state. A judge may not grant permission if your ex-spouse has restrictions on leaving the state or country with your child, such as a probation agreement. If a judge does grant permission, your ex-spouse will have to leave information such as where your child will be and how long they will be gone.

What Is a Move-Away Case?

Some divorce cases involve one parent wanting to permanently move out of state or far enough away that it will disrupt a custody agreement. These are move-away cases. Typically, only the parent with sole custody will have the right to move out of the state with a child. In this case, the parent with sole custody does not need the other parent’s permission. The noncustodial parent may argue in court, however, that the move is bad for the child.

If both parents share custody, moving away becomes a complicated legal matter. The parent who is not moving will have to give the other parent permission to move with the child. If you do not want your spouse to move out of state with your child and you share custody, deny permission. Your ex-spouse will then have to go to a judge to request permission. Your spouse would have to demonstrate the move is in the best interest of the child.

You may be able to work together with your ex-spouse to adjust your parenting agreement to accommodate a move out of state. You could create a new custody plan with a different visitation schedule, for example, to accommodate the greater distance. A new parenting plan drafted with assistance from an attorney could still allow you to have quality time with your child if he or she moves out of state.

What Are the Penalties for Leaving a Jurisdiction With a Child?

If your ex-spouse leaves the state or country with your child without notifying you or obtaining permission, it may be possible to press charges. First, try to contact your ex-spouse and find out if it was a misunderstanding. Your ex might have thought you gave your permission for the trip, for example. If you believe the breach of your custody agreement was intentional and your children are in danger, call 911 to report a parental kidnapping. Give the police a detailed description of your ex-spouse and your child, as well as the vehicle you believe your ex is driving.

A conviction for parental kidnapping in California could lead to serious penalties. Kidnapping comes with a potential prison sentence of three, five or eight years, as well as a fine of up to $10,000. Even if your ex-spouse does not face criminal charges for leaving a jurisdiction with a child, he or she could face penalties from the family courts. A judge may agree to modify your custody agreement to give you sole custody or more parenting time after this type of incident, for example. Speak to a Solana Beach family law attorney if you have this type of case.