Is it Just a Threat?

In a divorce, often the most important issue will be custody and parenting time.  This is the most emotion packed issue for many divorcing parents and sometimes can cause people to act in erratic ways.  One thing that we encounter often in the field of family law is one party making threats about custody and parenting time battles or threatening to take the children and move out of the marital home.  Many times these are merely threats meant to cause anxiety or bait the other spouse.  However, there are occasions where a spouse will follow through with such a threat and take the children with them, most often to that spouse's parent's house or a new rental apartment without the consent of the other spouse.

What Should I do if My Spouse Actually Tries to Take the Children and Move Out?

If a spouse does actually follow through and move out with the children without the other spouse's consent, the court will often take a dim view of these actions.  Therefore, the best action for the home spouse (the spouse that has not left the home with the children) is to hire a family law or divorce attorney as soon as possible.  Then the attorney should take swift action to file a complaint for divorce and simultaneously file a motion for the leaving spouse (the spouse that has left the home or is seriously threatening to leave the home) to return the children to the marital home and/or set an interim parenting time schedule.  if the spouse has not left the home, then one could request a restraining order against taking the kids from the home or a parenting order that will commence upon the relocation of the leaving spouse.

In order to start the case and give the court authority to issue orders, the attorney must prepare what is referred to as a "Complaint for Divorce".  The complaint is usually a very simple two to three page document that can be prepared relatively quickly by any qualified divorce lawyer.  Then in order to have the court actually take action, the attorney should also file a motion for the leaving spouse to return the children to the marital home and/or set-up a parenting time schedule.  The motion will be more complicated than the complaint and should contain sufficient factual information for the judge to get an understanding of what is actually happening and include a request for the judge to issue certain orders, so it will take longer to prepare as well..

Once the motion is filed, the court, or the attorney depending on the jurisdiction, will set a hearing date for the attorneys to argue about this particular issue to either the family court judge or the friend of the court referee assigned to the case.  Most judges in this day and age really do not like what they see as one party usurping the court's authority by trying to unilaterally decide the issue of custody or parenting time by just taking the kids, so the most likely outcome is that the judge will order the leaving spouse to return the children to the home and enter a parenting time schedule that provides relatively equal parenting time to both parents taking into account the parties' and the children's schedules.  This parenting time order will often be referred to as an "interim" or "temporary" parenting time order and it will remain in place until the parties either reach an agreement through negotiation or mediation or there is a trial and the judge issues a judgment of divorce and makes the decision for them.

Immediate Action is Required if a Spouse Moves Out With the Kids.

Very frankly, if a spouse moves out of the home with the children, immediate action is required.  It is imperative to contact an attorney and get the case started and the motion filed as soon as possible.  There are several reasons for this including but not limited to the fact that the home spouse will not be able to see the children except on the whim of the leaving spouse, the police will not take any action to return the children without a court order and there can be a perception on behalf of the court that one's failure to take immediate action reflects a lack of concern or care about the children.  If you are facing divorce or custody issues, please do not hesitate to contact us to schedule a consultation.