Q: Can I move my children from NY to RI when there is no custody or visitation in place?
I currently have custody of my two children. We have an order of protection out against my ex (their dad). We have been back-and-forth to court numerous times because he is mentally unstable but his court appointed lawyer is fighting for 50/50 legal with physical custody being given to me. There is no visitation in place. I’m a newly licensed registered nurse and I would like to move for a position in Providence. My ex is unemployed and has been in a halfway house for eight months. What do I have to do to be able to move with them?
A: You cannot move without court approval or consent from the father. Even thought there is no current order, you make it clear that the father is seeking 50/50 legal custody thus "custody" is an issue. If you were to move, you risk the court ordering you to move back to NY. You should get a clause in the custody order that gives you permission to move or file a custody petition with a request to relocate. Discuss this with your lawyer if you have one and if not I strongly suggest you speak to one before doing anything.
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A:
There is a calculus involved in moving a child without a custody order. Initially, we Americans can move freely throughout this great nation as it is our right to travel without permission of government. However, how responsive the father is weights heavily on the matter.
If the asker moves to her new state and the father does nothing for six months, then the asker successfully accomplished a relocation without a court order, and federal law prohibits any custody action in the losing state.
However, if the father files for a return of the child within the six month period, the asker will be in serious trouble of losing custody of her child. The current family policy in this nation is that an absconding parent does not deserve custody of a child because she refused to foster a relationship between the father and the child. Some courts feel strongly about enforcing such a policy while other courts do not care.
One takes one's chances in a policy court like a family court, and prudence and caution dictate every move. Trying to go it alone without an attorney can mean the death knell to custody.
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