Skip to main content

Can I move out of state with toddler? how do I get permission from the father? can I get custody without divorce? (common law)

Dallas, TX |

we've been in a common law marriage for 2 years, we have a 2.5 year old and we are no longer compatible and need to not be together, but we don't really want a divorce. is there a way around it and, if I have his permission (how do I prove permission?) can I move out of state and establish residency somewhere else? will I still need to get a divorce in the new state if I don't carry myself as married anymore? can I file custody paperwork without divorce decrees?

Also: the father is very unstable and needs help, I'm pretty sure he has PTSD and is bipolar, he has asked for help, but refuses to actually seek it, he is a veteran. is there some way I can make him get the help he needs and wants, but refuses to get?

+ Read More

Attorney answers 4


You will be married until you get a divorce. Moving or using your maiden name do not change that fact.

You can, and should, get orders about the child for support and visitation. You do not need to file for divorce to file a SAPCR (Suit affecting the Parent-Child Relationship).

Talk to an attorney about your plans. If you file a SAPCR here, there is a possibility there will be a geographic restriction placed on the child's residence, which would mean the child has to stay here. If you file after you move, you will have to wait at least 6 months to file and the state you move to might not have jurisdiction over your ex to order child support. So you need to have a sit-down chat with an attorney to determine the best course of action for you and your child.

If your ex is a danger to himself or others, a mental health warrant might be an option. In that case he could wind up being involuntarily committed for evaluation.

This answer DOES NOT establish an attorney-client relationship. This answer is based on the limited information provided and is not intended to be conclusive advice. There are likely other factors that might influence or change the advice after a more lengthy consultation.

Bryan L. Walter

Bryan L. Walter


The issue of jurisdiction of the state to which she moves is not an issue as far is UIFSA is concerned. That statute would allow her to collect child support from an out-of-state resident. Also, there are reasons for not getting orders as well as reasons for getting orders.


You can file a Suit Affecting the Parent Child Relationship without filing for divorce, but why would you want to in this situation? A divorce will also divide the assets and debts, which is a good thing. You can ask the Court to order that he gets help as a condition of having access to the child.

This does not establish an attorney/client relationship


1. You can file what is called a Suit Affecting the Parent Child Relationship without having to file for divorce. Although I'm not sure why you would want to in this situation. You will remain married until you file for divorce whether in Texas or another state.

2. Unless there is a court order restricting the child's residence to a certain location you are free to move. If you move out of state, you may have to wait at least six months before filing suit. If you move somewhere within the state of Texas, you may file suit anywhere the children are located. Note that once a suit is filed he may ask the court to order a geographic restriction on the child to ensure that he can access visitation.

You should contact an attorney in your area to help you best decide where and when to file a custody suit. They can also help you determine how to proceed with the father's mental health needs if necessary.

Bryan L. Walter

Bryan L. Walter


I disagree that she will remain married until she files for divorce. There is a common-law divorce. If she does not live with him for two years, then she gets common-law divorced automatically. No need to file for divorce.

Kayla Renay Maxey Wimberley

Kayla Renay Maxey Wimberley


Yes, there is a common law divorce which requires no filing and I did not phrase my answer well above. However, I would rarely recommend a common law divorce, especially when children or property are involved.


You need to speak with the family law attorney who is experienced in interstate issues. You need to develop a plan and strategy based on your particular situation and circumstances.

It may be in your best interest to do nothing, stay away from him for two years, and then be automatically common law divorced. You may decide to pursue the strategy as part of a plan to move to another state. If he won't even get help for himself, what are the chances of his suing you?

The fact is that you can come back later and sue him for child support even during the period you are gone.

This strategy depends on your goals, and the chances of his doing anything.

The question you have to answer is what is best for your child. The answer to that question could be totally different from what is best for you. you should look for the best interest of your child first, and then consider what is best for you after that.

Hire an attorney to develop a comprehensive strategy and approach.

Please designate a best answer to your question, and mark as helpful any answer you find helpful. Help support the time spent by attorneys in this forum. Thank you. This is not legal advice and is provided for informational purposes only. NO attorney-client relationship or privilege is created, and none of this is confidential.

Get Avvo’s 10-part divorce email series

A weekly guide with tips and legal advice for each stage of the process.

Divorce topics

Recommended articles about Divorce

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer