Question:
My wife is looking to separate from our marriage of four years. We have a 2 1/2 yr old daughter together and she had a 15 yr old daughter from a previous marriage. She has decided in her mind that she is going to win custody and move to Texas with both of the girls at the end of May although she hasn’t filed yet.
First, is there a way I can prevent her from leaving the state with my daughter?
Second, is there a way I could possibly gain custody of the 15 yr old through this process?
Answer:
The first step should be to file for dissolution of marriage to commence legal proceedings in order to invoke the applicable statutes governing parental removal of a child. The Federal Parental Kidnapping Prevention Act provides a mechanism to track and return children who are improperly taken during a custody dispute. However, there generally needs to be a pending court proceeding to invoke legal recourse. Some states prohibit removal of children from the jurisdiction without court approval. Other states only require the parent to be notified prior to removal. You should consult with a qualified domestic relations attorney as to the criteria applicable in your jurisdiction.
The final decision on whether the child should be allowed to move with your wife will depend upon numerous factors such as the planned relocation versus current home environment, reasons for the relocation, parenting skills and abilities of each parent, relative finances of the parties, and other factors relevant in your jurisdiction. The court can not prevent your wife from relocating, but it can require your child remain with you if that arrangement is in the best interests of your child.
It is imperative that you commence legal proceedings promptly, as obtaining the return of a child that has physically left the jurisdiction presents various logistical issues and failure to file in your jurisdiction may allow your wife to commence custody or divorce proceedings in the State to which she has relocated causing additional legal proceedings as to the proper jurisdiction to resolve the issues.
Your ability to obtain any custodial or visitation rights as to your step-child is also dependent upon the laws of the applicable jurisdiction. Generally, unless you have adopted her child from the other relationship, your ability to obtain custodial rights to a step-child may be limited to certain circumstances or require a showing of harm to the child unless you are awarded custody. Obtaining visitation rights may be less difficult but still subject to the applicable laws and court rulings of your jurisdiction.
Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.
