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My wife and I are not legally divorced, can she move out of state with my son without consent?

Palm Beach Gardens, FL |

We do not have any custody filings with the court, and at this time are still legally married but live in seperate locations in the state of FL (inside 50 miles of each other),

Attorney Answers 4


  1. Without a court order or permission from you, she cannot leave the jurisdiction and/or 50 miles from her current home. When there is no court order, the following applies:

    Florida statute 787.03(2):
    "In the absence of a court order determining rights to custody or visitation with any minor or with any incompetent person, any parent of the minor or incompetent person, whether natural or adoptive, stepparent, legal guardian, or relative of the minor or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that minor or incompetent person within or without the state with malicious intent to deprive another person of his or her right to custody of the minor or incompetent person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

    Good luck,

    Vanessa Vasquez de Lara, Esq.
    Attorney at Law
    7700 N. Kendall Drive, Suite 412
    Miami, FL 33156
    (305) 984-4287
    vvasquezesq@gmail.com
    www.vvasquezelaw.com


  2. I disagree, slightly, with the other answer posted.

    If you have not filed for divorce, she can relocate and the issue then becomes, can you get an order requiring her to come back. The criminal kidnapping law cited above requires "malicious intent" which is difficult to prove and requires the State Attorney to deem it appropriate to get involved.

    The family law "relocation" statute DOES NOT preclude anyone from moving if there is not already a Court Order regarding the custody of your children.

    The best way you can prevent her from relocating without your consent is to immediately file for divorce, and to be a positive and involved father.

    My answer is based upon the limitations you have given in your question, and may not be complete as there are numerous exceptions to every legal claim which requires a full analysis of the facts and circumstances of your case to discuss in detail. Please see a lawyer in your area and do not rely solely on any answers you receive from this web-site.


  3. If your wife does relocate with the minor child outside of the marital state and you do not take steps with the court to have the child returned to the original state, the new state can obtain jurisdicton over the minor child and the issue of parenting time if the child remains in the new state for a period of six months.

    Time is of the essense in objecting to an out of state move and requesting the court in your state take jurisdiction of the child and issue orders for the child's return.

    This response is provided in general terms to the information provided. The response does not create an attorney/client relationship. For specific advice tailored to the exact circumstances, an attorney should be contacted.


  4. If there is no case filed and no previous final judgment order addressing "custody" type issues, ie timesharing, then technically she can leave with the kids without court permission. Get a case filed asap.

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