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Can my ex-wife move out of state with my kids?

Brooklyn, NY |

My ex-wife had filed for an uncontested divorce in June of 2012, and the divorce wasn't finalized until January of 2013. She has full custody and we always kept to the agreement that I get visitation with my kids every other weekend. The divorce decree states that "the defendant (me) shall have visitation away from the custodial residence as the parties may agree." Now my ex-wife is planning to move out of state to Florida with my kids, and I do not agree with that at all. Is there anything I can file in court to try and prevent her from moving out of state with my kids? My kids love being with me all the time and it hurts me deeply to know that they'll possibly be out of state and it's less time that I'll have with them.

Attorney Answers 3

  1. Yes, you can file a custody petition in Family Court or Supreme Court to address this situation. In New York State, interstate moves without the consent of the noncustodial parent which will interfere with reasonable access to visitation and shared parenting are not allowed and raise serious issues for the court. The leading case on the topic is a Court of Appeals (state's highest court) case called Tropea v. Tropea which lists a number of factors which must be considered in allowing (or not) and interstate move by the custodial parent in a custody case. See, .

    This is a relatively "dicey" kind of case and you will need to move quickly before the move so the NY courts retain jurisdiction which they can possibly lose six months after a move (although arguably your case may be different because there is a NY decree or order). An attorney is helpful in this kind of difficult custody case; you can use the "Find a Lawyer" tab on this site or Google for "child custody" or "family law".

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  2. If you do not agree to the move, file a petition in Family Court seeking to prevent the move. It will be easier on everyone if you file before the move has taken place (consider moving the kids all over, or forcing them back to NY after a move as not the best for them either). Once the kids are out of the state for six months, New York will lose the ability to hear the case. Good luck.

  3. Typically an agreement drafted by an attorney would ensure hat you have a set visitation schedule and would also have provided a radius clause or other mechanisms to address a potential move/relocation. You should consult an attorney about filing a petition/motion to address this move before your ex moves your children.

    The content of this post is not legal advice and should not be relied upon as such. I am not your attorney and no attorney-client relationship has been formed based upon this exchange.

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