Can I prevent my wife from moving to another country to have our child?

Divorce Attorney Angela FoyQuestion:

My wife is from another country and is pregnant with our baby. She wants to move back to her country to have the baby, which I am against. I already have kids from a prior marriage and it would violate my child custody agreement if I went with her. Can I prevent her from moving? What are my rights?

 

Answer:

Prior to birth, the rights of men and women, though both may be parents of the same child, differ greatly.  It is unclear from your question whether your wife intends to travel to France to have the baby, or whether she wants to move back to France.  Unfortunately, there is not much that you can do to prevent her from having the baby in France.  If that is the case, and you are concerned about how traveling may affect your current placement with your other two children, many times that can be addressed prior to leaving, either informally or by motion if necessary.

If you are concerned that she intends to stay in France after the baby is born, you may be able to take some preventative action prior to the baby’s birth, but this action depends on the rules in your jurisdiction.  I do not practice in California, so I can only speak in generalities.

Many states allow a parent to initiate an action for an order on custody and placement, even if the parties are staying married.  If you filed for divorce, these issues would also be addressed in the divorce.  The action you would be filing would be an action to prohibit a move or removal of a child, in addition to seeking custody and placement orders.  States vary as to whether they will allow this action to be filed prior to the birth of the child.  If it is allowed, you may be able to get a preliminary or temporary order either (1) prohibiting her from moving to France in the first place; or (2) requiring her return after the birth.  Many courts will not prohibit one of the parents from moving; however, courts frequently dictate where the child may live, and it is very often tied to the court with jurisdiction.  It is common for a judge to allow a parent to move, but not take the child, if that is determined to be in the child’s best interest.  The benefit of filing prior to the move and birth is that it would establish jurisdiction before she leaves.  After she moves, it would be very difficult to establish jurisdiction here unless she visits or returns.  You would then have to seek a custody and placement order in France.

The best course of action would be to talk to her and try to come to some kind of arrangement that works for you both.  If you are willing to move, but need to address how that affects your relationship and custody and placement arrangements with your other two children, that also may be able to be modified. You should be aware of time constraints, including when she is actually looking to leave and how long it may take to get into court once you file an action.

How likely you are to be able to obtain an order depends on the facts of your case and the specific rules in your jurisdiction.  I do not practice in California, so I cannot inform you as to the state’s specific laws.  I recommend that you consult a domestic litigation attorney in your jurisdiction.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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