Ask a Divorce Lawyer: Can my ex just leave my kids with me for the school year then take them back?

Question: My wife has custody of our children on the divorce decree. However, she has recently sent the kids out of state to live with me and my current wife for the school year. She is also planning on moving out of the state where our divorce took place. 

Our divorce decree has not been updated. At the end of school she plans on getting the children back. I want the kids to have a stable life and not have to keep moving back and forth. 

Now that the kids are in my home can she force me to give the kids back now that will have been with me for several months? If I fight it, do I stand a chance of keeping the kids or will the state take the mother’s side?

Answer:

As you know, having gone through a divorce with children already, the deciding court’s ultimate decision is based on several factors commonly referred to together as “the best interests of the child.” One of the most common factors is the child’s current and proposed homes. Which is cleaner? Which is nearer a quality school? Where is extended family located? In which is the child happy? Is the child old enough to state a reasonable preference? On the limited information you have provided, it is impossible to say whether the court will favor you or your ex-wife (whether the “state will take the mother’s side,” as you put it). The court will base its decision on several factors.

However, no court will enforce an agreement between you and your ex-wife that has not been reduced to a written order or followed a statute authorizing the move to a T. The informal agreement you described leads me to believe the move was not authorized. Therefore, one of you will need to request a modification to your divorce decree. Just how you do so depends on how long your children have resided outside the state where the court issued the decree. In general, the court retains continuing, exclusive jurisdiction to enforce and modify that order. However, if the children have resided in a different state for at least 6 months, then the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) may apply. If the UCCJEA applies, then the motioning parent may file an action in the children’s current state to request that the prior state’s court relinquish its control to the new state’s court. There are certain other details and alternatives to consider, such as whether the children have substantial connections to the new state, that go beyond the limitations of this question-and-answer forum. You should contact an attorney in your state for more information.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Washington. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in custody cases do, particularly when interstate laws (and how your court interprets them) apply. The laws applicable to your order may be unique, and only an attorney who practices in your state can fully advise you and represent you. 

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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One comment on “Ask a Divorce Lawyer: Can my ex just leave my kids with me for the school year then take them back?

    I actually had a similar situation where my now ex-wife sent two of the three children to live with me (she legally had primary phycical custody). However, in my case she decided to take them for an agreed upon holiday break and then not bring them back. This happened in the middle of a school year! I filed an emergency petition and the short version is the judge sent them back with me. The judge was not at all happy that my ex-wife did what she did. I have had custody now for a little over a year. We go back to court every few months, but so far I have maintained custody.

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