My Ex-wife is moving can she take my kids with her? What can be done to stop her? I hear these questions quite frequently. The answers may vary depending on where you live. However, many states do have laws regarding this very issue. For example, Indiana requires the relocating parent to file a written notice of their intent to move with the court as well the non-relocating parent. This notice is to be filed 90 days in advance of the move and requires specific reasons for the move and the affect it will have on the non-relocating parent. Indiana requires this notice for every move regardless of the distance. Not all states will have such a provision. For example, notice may only be required in your state if the move exceeds a certain number of miles. Or there may be no notice requirements at all. It should be noted that notice requirements will normally only apply if there is an existing court action (i.e. divorce, legal separation, paternity).
Even if your state does require a notice be filed, that does not mean that your ex will do so. If you believe she is planning to move, do not wait to take action until she files her notice. In Indiana, if you receive notice or know that your ex is moving with the kids then what do you do? You can file an objection and/or for injunctive relief. An injunction is usually requested to prevent the children from moving pending a court hearing on the matter. This is important if you find out the move is imminent. If an objection is filed, the Court will set the matter for a hearing. It is important to file an objection. If you do not object in a timely manner, you may have waived your right to do so. In Indiana, you have 60 days to file a written objection with the Court after receiving the Notice of Intent to Relocate. This, of course, assumes the relocating parent has filed Notice and filed it 90 days prior to the move.
The objection has been filed, now what? The next step is usually an evidentiary hearing. What is the purpose of this hearing and what factors will the court use in determining whether the move is allowed? Keep in mind the requirement to notify is not the same as being required to obtain permission to move. The relocating parent has to show first that she has a good reason for the move. What is a good reason? Some valid reasons for moving may be job transfer, job opportunity, or family support in another state. If the court is satisfied with the reason for the move, the next consideration is how it will impact the non-relocating parent’s time with the children and the overall best interest of the children.
What impact will the move have on your parenting time or custody of your children? If the move is across the street it is unlikely to impact your parenting time. If you have parenting time every other weekend, a move across town or an hour away will not have a huge impact on parenting time. However, if you enjoy joint physical custody or mid -week parenting time; moving an hour away can negatively impact your time. The court may determine that although the current schedule is not workable an alternative schedule can be put in place allowing for the same amount of parenting time. If this can be done, then the move may be allowed. The court may order that you have additional parenting time in the summer and during school breaks to make-up for missed time.
The court may decide that the move is not in the best interest of the children. The courts like to maintain the status quo. The courts encourage stability in children’s lives. If the children have strong ties to their community, they are less likely to approve the move. If the move will require the children to change schools, move from friends and family, it is more likely the move will not be approved. The court cannot prevent a parent from moving but they can prevent them from taking the children with them. Therefore, if the court determines that the move is not in the children’s best interest, the court can modify custody. In other words, if she moves the kids stay with the non-relocating parenting.
If you are faced with the possible move of your children, contact an attorney in your state to determine what notice requirements are in place in your state. Keep in mind that these cases are very fact sensitive. Courts will look at each case independently. It is important to discuss all possible outcomes with an attorney based on the specific facts of your case.