Can she move the children out of state while we’re still married?

divorce attorney Jill DuffyQuestion:

I am in the middle of divorce so I am still legally married. My wife wants to move with our child back to the state she used to live in while the divorce is pending.

Can she legally do this without my consent? If she did move, would the divorce case transfer to the new state?


The old saying “possession is nine-tenths the law” holds true when dealing with children whose parents are still married. While parents are married, neither parent needs the other’s consent to take the children out of state.

However, if during the course of their divorce a temporary custody order has been put in place the mother may need the father’s or the court’s permission to leave the state with the child.

If no such orders exist, the father should petition the court for an order prohibiting the mother from leaving the state with the child. Based on the mother’s representations the order is needed to finalize the divorce in the state you currently live in. Because a divorce is already pending in that state, it is unlikely that another state’s court will have jurisdiction (authority) to start a new divorce and custody case.

You should contact an attorney who is licensed in your jurisdiction to further discuss the specifics of your situation. Cordell & Cordell does represent men in divorce nationwide. Thank you for submitting your question.

Cordell & Cordell understands the concerns men face during divorce.

Jill A. Duffy is an Associate Attorney in the Troy, Mich., office of Cordell & Cordell. She is licensed to practice in the state of Michigan. Ms. Duffy received her BA in Psychology and Spanish and graduated Magna Cum Laude from Oakland University. She received her Juris Doctor from Michigan State University College of Law and graduated Magna Cum Laude.

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4 comments on “Can she move the children out of state while we’re still married?

    Hi, I am a father that lives in Colorado and had my divorce finalized in New Mexico. I have two daughters that the mother had temporary custody in New Mexico. after the final hearing I got my daughters back and have primary custody. I am wanting to move to California for a better job and living. Is it possible for the New Mexico courts to over turn the final judgment because of me wanting to move? can they tell me I cant move even though I already live out of the state? the visitation would not change at all just the distance and instead of driving it would be flying? I need help to know with my questions please..

    I’m been married for 17 yrs to an extreme narcissistic control freak who throws a fit whenever I want to take our four kids to another state to visit my family and friends. It’s his way or no way and puts us all thru verbal hell until he gets what he wants. He has a mental disorder and it’s getting much worse. He has no sense of hazard and is always putting the kids In danger and it’s just by the grace of God that they haven’t been seriously hurt. It’s close to escalating to physical abuse and I’m scared for the kids. He threatens to get full custody of the kids if I file for a divorce. I don’t know what steps to take to get out from under this tyrants control. My family and friends are supportive but he tries to cut off communication with them. My oldest daughter who’s 16, gets the brunt of his wrath by constant criticizing and needless dicipline. She’s depressed and is seeing a psychologist who knows that the father is the problem. How do I get away from this monster ?

    You can’t legally take the children out of state without permission of other parent. You are kidnapping in the courts eyes and this could lead to fines or even a prison sentence. However, if the father is putting the children in harms way and have mental disorders then you may have the advantage in taking full custody of all your children. If the court doesn’t see evidence or documents of any mental disorders of the father then you will have joint custody and he can choose to keep his kids in state with you or not. The kids can’t choose to not have visiting times with the father until they are 14 and this may also be investigated to a point so that it is relevant in courts. Yes I know…the legal system sucks and I am stuck in this same kind of issue. My parents are in the middle of a divorce and I want to move to Florida with my mom and step father but I am stuck up north with my father because he won’t agree to let me and my siblings go. It feels like prison not being able to leave to another state. Good luck with your custody case

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