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Do I need to be legally separated before moving out with the kids?

August 23, 2016 Our Blog

The short answer to this question is no, but there are several reasons why you may want to file for a legal separation in states where they are allowed. These issues are usually based on the legal rights of both the parents and the children. A marriage license is actually a document that connects the spouses legally in terms of living together and having legitimate children, and in many ways, the state views the marriage as a business entity. Both partners have legal rights to accumulated property from the divorce that are addressed during a property dissolution proceeding, but the disposition of minor dependent children is a different issue. The children have rights as well and rarely have a personal attorney. This is why it is very important to have a plan in place before beginning a divorce, including the time you choose to leave the household, because the court has the authority to intervene if they think the children are in any danger.

Parental Rights
One of the biggest problems with a separation is that parents still have access rights to their children. Unless there is verifiable evidence of domestic abuse towards the children, either parent can attempt to assume controlling custody of the children when a married couple with children live in two locations. And, the rights of each parent are not necessarily connected to their potential support responsibility. The parent who has designated custody of the children can petition the other parent for some level of child support. When there is no legal separation on file, or even a valid signed agreement between the parents, this can become a very grey area of the law. A legal separation is actually just a recognized legal document that begins the establishment of rights to custody and support of the children.

Children Rights
Children also have rights concerning access to both of their parents. There are no distinct legal lines drawn when there is no separation agreement or legal separation recognized by the state. This means that children may not be allowed to visit their non-custodial parent when the case is emotionally charged for some reason. Material facts in any looming divorce case can also have a major impact on the final dissolution of marriage, including the disposition of children, and many times the parents do not consider the rights of their children. The real fear in this situation for either parent is that one parent will leave the state with the children before any legal paperwork is filed concerning family separation. Small children can easily be taken across state lines without any concern for their wishes when a parent is attempting to make a divorce difficult.

Child and Spousal Support
Claims to child support and potential alimony payments do not begin until one spouse takes the case to court in some fashion. In some states, the only legal move available is filing for divorce immediately. What a legal separation accomplishes in states that allow the legal designation is set a specific date on when financial benefits begin regarding the other spouse. In addition, most states now will eventually require the parents to agree to a “parenting plan” with respect to the rearing of the children instead of issuing a strict ruling on visitation with either parent. A legal separation is also a good initial step when the divorce is being contested or there is any history of violence before or during the time of separation.

As a couple with children, divorce can become even more difficult. Custody battles and separation difficulties can draw out a marriage for years, and you don’t want to move out and risk not only angering your children’s’ parent but also land in legal trouble. Moving out without a separation agreement or any prior custody arrangements can lead to greater risks that complicate the divorce and emotionally harm everyone involved. Before you consider packing up and leaving with the kids, here are some important aspects of child custody and divorce separation to consider.

Moving Out Without Custody

It’s understandable to want to move out as soon as possible after you and your partner have decided to get a divorce. It’s not comfortable when you’re no longer together but living under the same roof, and children are perceptive and able to tell when their parents are no longer happy together.

You and your ex-partner may even be prone to arguing in front of your children, which only exacerbates the difficult feelings of guilt, sadness and anger associated with a divorce.

Is Moving Out Kidnapping?

You may want to move away with your children before the separation is even finalized, but this could be forbidden depending on your state. Most states have laws in place that prevent parents from being unjustly separated from their children during a divorce.

Most states entitle both parents to full custody of their children until a separation or divorce are finalized or other legal custody arrangements are made. If you take your children abruptly and disappear to another state, you could be charged with kidnapping.

When you file for divorce, the Parental Kidnapping Prevention Act grants jurisdiction in future custody proceedings. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) enforces your home state as the location in which all custody proceedings must take place. You cannot take your children out of the state during this time. The “home state” under the UCCJEA is where your children resided for at least six months prior to the divorce filing.

Moving to prevent your children from seeing their parent without due cause and evidence could be deemed “parental alienation,” which can be used against you in a court of law. Not only does preventing a child from seeing their parent potentially risk the equality of a future custody agreement, but you could also be causing significant emotional and mental harm to your children in the process.

A legal separation is a way to arrange a custody agreement that reduces any risks with moving as relocation can be a part of the initial custody arrangement. If you have sole custody, you are able to make all legal decisions regarding your child(ren).

While one parent may have the ability to move, doing so with the intention of cutting off contact to the other parent could be considered parental alienation. Depending on your state, even with sole custody, you may still need permission from the non-custodial parent in order to relocate to a new state.

Moving out of the home, however, could be a part of the custody agreement and deemed in the best interest for the children. Most judges award custody to parents with the intention of maintaining as much stability as possible for the minors during this turbulent time.

Joint physical custody allow children to reside with each of their parents equally in different locations. This type of arrangement is typically ideal for parents who want to live separately but do not wish to lose time with their children.

Joint legal custody differs from joint physical custody in that each parent has equal say over children’s education, healthcare, religious affiliations and so on. Moving without permission from a parent could be done, but it could also be considered a court violation that can lead to a loss of custody on the offending parent’s behalf.

Should I Get Legally Separated Before Moving Out?

Moving out before a divorce is finalized is a lot easier in cases of couples who don’t share children. When it comes to cases of parents seeking a divorce, you can’t be too careful. Unless domestic violence or emergency situations demand you relocate, it’s better to have a legal separation and custody arrangement prior to moving out of the family home.

Without any legal agreements in place, it’s much easier for a parent to isolate the other from the children or turn the custody hearing in their favor. In some cases, parents who leave without a custody arrangement can be charged with kidnapping, and you could go to jail if you take your children and move across state lines without any warning or agreement from their other parent.

Speaking to a divorce lawyer and arranging a legal separation protects the entire family. When it comes to getting a legal separation, it’s best to act sooner rather than later and leave no questions unanswered. The main priority during any parent’s divorce should be to minimize the damage and pain for their children and help them transition into their new lives as easily as possible



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