Can I Stop My Spouse from Moving out of state with our Children?

By Brenda L. Storey, Esq.

With the mobility of today’s society, more and more divorces involve one parent seeking to move with the children out of state.  For the other parent, this often leads to one big question – Can I stop it?   The answer is not a simple one.

A court cannot tell a parent where he or she can live.   So, a spouse cannot get the court to order a parent not to move out of state.   Instead, the court must accept where each parent intends to live, and fashion a parenting plan in the children’s best interests based upon the locations of the two homes.    The focus, then, is which parent should have primary care of the children.  Usually, this answer is the same whether the parents remain in the same area, or live in different states.    The children’s emotional and developmental needs, and limits, do not change just because of distance.   However, the harm to them can be worse under a two-state plan if they do not continue in the primary care of the parent with whom they see as their primary attachment figure and securest bond.   With this in mind, experts and the court often focus on which parenting arrangement would result in the least harm to the children.

The court also cannot indirectly force a parent to live in a certain area.   The court cannot, for example, call a parent’s bluff by ordering the children remain in the primary care of the parent staying in Colorado, in the hopes of getting the other parent to abandon their intent to move.  This is contrary to case law, and trial courts cannot go rogue against controlling legal precedence.

As can be seen, the focus is not keeping a parent from moving, or even keeping the children from moving.    Rather, a schedule must be devised reflecting when the children are with each parent, wherever the parents lives.   These are very emotionally challenging cases, but ones that are becoming more and more common in today’s divorces.

This issue is very different from a relocation case, which is a proposed move with children post-decree, after an initial parenting plan has been implemented.   That kind of case will be explored in a future blog post.

 

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