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Removing a child from the state w/out father's permission

San Luis Obispo, CA |

She has said she is leaving him and taking the children to another state. He is against this. They live in California.
They are married. No divorce is filed yet.

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Attorney answers 2


If he wishes to keep the children in the state he may file for divorce or legal separation and have her served. There are automatic temporary restraining orders which immediately apply to both parties, including a prohibition from removing the children from California. She may either get his agreement to remove the children or she may ask the court for permission to do so. Absent any court filing parents are allowed to take their children where they wish, although if they do so secretly that may constitute kidnap. Since you indicate that she's been up front about it, that doesn't sound like a kidnap.


I agree with the general information stated in the prior answer. However, if the parties cannot agree on the mother's right to move away, the "primary custodial parent" had the presumptive right to re-locate to a different geographic area with the minor children. It is likely that litigants will request a child custody evaluation to seek to present psychological evidence showing the impact such a move would have on the child and the child’s relationship with the non-moving parent.

If the non-custodial parent can prove a "significant detriment" to the move the court must apply the best interest standard in determining whether custody should be changed to the parent who remains. The court can consider the move itself as creating a "significant detriment" that would trigger a best-interests determination as to which parent should have custody in light of the move. In deciding whether to grant the move the court is required to consider the following factors:

Stability and continuity of custodial relationships
Distance of move
Ages of children
Relationships with Both parents
Relationships between parents
Ability to communicate and cooperate;
Willingness to put needs of the children before their individual interests;
Child's preference if they can express a knowing and mature preference
Reasons for move
Extent of shared custody prior to move request

In order to prevent such a situation, it is a good idea for the father to try and get no less than 40% of the timeshare.

In any event, I hope that you are mistaken about the possible move-away situation because studies have been conducted of children (now adults) whose were involved in a move-away situation. Those studies show that the move-away negatively impacts the child's relationship with both parents because (1) the child's relationship with the parent left behind becomes increasingly superficial unless that parent makes a great effort to visit the child where the child lives and meets the child's teachers, coaches and friends, etc. and (2) the child blames the parent who moved away for causing the relationship with the other parent to diminish.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

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