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Can i legally move out with the children and enroll them in a school district where i will be living? mediation & divorce pendin

San Diego, CA |

My mediation date forcustody isn't until Nov and I want to move into my mothers house with the children & enroll them in the school close by. The TRO & emergency custody order was dismissed so currently there are no orders as to visitation or custody. Can i do this legally???

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Attorney answers 3


If your divorce is pending, then there is one order relating to custody and visitation that is in effect: you cannot take your children out of the state without the consent of the other parent. Otherwise, moving out with the children and enrolling them in a school nearby is not likely to result in a finding that you violated a court order. So, yes, you could do that "legally." That does not mean, however, that there will be no adverse consequences. In many cases, operating without court orders for custody and visitation is like being on the high wire without a net–you need to be more careful.

If you and the other parent have a decent working relationship, then you should discuss the move and the school enrollment before acting. But if there was a request for a restraining order, then I assume you do not have a good working relationship. That probably means it would be difficult for you to and the other parent to discuss the matter rationally. Even so, unless there is a high risk of harm to you or the children for trying, you should probably try talking about it. Otherwise, if you move out with the children, without warning, the other parent may go to court ex parte seeking temporary custody orders. Depending on the circumstances, you may then find yourself at a deep disadvantage on the issues of custody and visitation. In short, proceed with caution.

Before doing anything, you should probably meet with a family law attorney in your area, explain all the circumstances, and see what they advise. They will have a better idea how your local judges tend to deal with these situations.


The automatic temporary restraining orders on FL-110 (your summons) govern in the absence of a contrary Court Order. They prohibit you from taking the kids outside of the state.

If your school is in the County where your divorce is pending, you can legally make the move. However, your spouse also has legal custody (which is different than physical custody). He can object to the school enrollment as he has the legal right to participate in such decisions.

My recommendation is that you get the Court's blessing first by filing ex parte for a custody order pending hearing (mediation results). --


I would say No, if the court has jurisdiction over you, and your children and you are in court now regarding custody and visitation, and you are going to move outside of your immediate area, like out of the county, then you would need to either get written permission for the other parent or a court order. IS this place more than 50 miles away? more than 100 miles away? If so then that is considered a relocation and then you absolutely need a court order. Generally issues regarding the health, safety and we;fare of the children i.e. education should be mutually agreed upon, this is called shared parental decision making. My question to you is, Can the other party just unilaterally decide to move away with your kids without your consent or court order and enroll them in school and just tell you about it? No.... I'm sure that you would have an objection to this and feel that your rights were violated. You need a court order.

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