Non-custodial parent acts out of spite and I am worried she will take child out of state against my wishes. Is this legal? If not, does this action warrant an order for protection?
Criminal Defense Attorney
Sorry to hear about your situation. As previously mentioned a non-custodial parent can take a minor out of state during their parenting time, unless a court order or your previous agreements indicate otherwise. Although the custodial parent has legal custody of the child, the non-custodial can still make decisions on behalf of the child when the child is with him/her including going on vacation or out of state. This may be prevented if a judge or court order states that the child may not be taken out of the state.
If you believe that the child is in danger you should seek supervised visits immediately, again you would have to prevent sufficient evidence to prove to the court that it would not be in the best interest of the child for the non-custodial parent to have unsupervised visits. I would suggest contacting an attorney for a free consultation to discuss your facts in more detail.
The information provided should be considered an opinion only. This information does not establish a client-attorney relationship. Until the facts of your case are completely evaluated the answer provided could change. You should consider setting up a consultation with an attorney in your area.
Unless there is a court order specifically dictating how and where the parenting will be spent, then it is up to the parent with whom the child is spending time. No, this action does not warrant an order of protection. I suggest you consult with a local attorney to review all your rights, options and obligations before you get too worked up over this issue. You can find attorneys by searching among the profiles here on Avvo. Good luck!
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Criminal Defense Attorney
Yes. There is nothing that precludes a parent from taking their child out of state during their court ordered parenting time. The only thing that would preclude it is an order to the contrary. It is certainly not an action that would support an Order for Protection.
You must choose your battles wisely. Unless there is some valid reason relating to safety or some other legitimate concern, a motion to preclude such action is not likely to be fruitful.
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Family Law Attorney
I take a slightly different approach to this issue. While, technically, the earlier posts are correct - the custodial parent does not get to dictate terms of parenting time when the non-custodial parent exercises it, crossing state lines is a different matter. While I certainly agree that it is not cause for obtaining an OFP in advance (no judge will grant it based on this information), if you believe the other parent plans on removing the child from the state, and you object to it, then you should immediately go to court to obtain a restriction on out-of-state travel. Many judges, in my experience, would agree to such a restriction, and I frequently place such language in the divorce decrees I prepare.
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