Moving Without the Children: When It’s That Important

Moving to another state without your children before your custody arrangement is modified or established isn’t advisable. But we’re looking at the worst-case scenarios here. Life happens. Sometimes an elderly parent needs you. You may be the only option.

Let’s say your mom’s neighbor just called. He had to take her to the hospital again—this time, she fell in the bathtub. You live in North Carolina, but your mom lives in Texas. She moved there years ago when her second husband took a job there. Even after he passed away, she never moved back to North Carolina.

You, an only child, are horrified by the news. You talk to the doctors at the hospital and learn that your mom can’t continue living alone. She needs around-the-clock care. But there is no way you can put your mom in an assisted living home. She needs you to take care of her and be there for her. There is no one else to help.

But what about your two children? You know your ex would never allow you to take the children to Texas. You have to leave tonight.

Or, what if the out-of-state job offer you received requires you to move almost immediately? The increase in salary is so significant that turning the job down would be the worst financial move of your career. With this new job, your children would have everything they need and, for once, more! What do you do when you have to decide right away?

As we discussed in another article, you could move with the children and face the consequences later. But in this article, we’ll explore the option of moving without the children and resolving custody after you’ve completed your move.

Can You Move Without the Kids?

Many times, life events happen so quickly that it’s impossible to schedule and complete a court hearing before you have to move.

Your first option, in most situations, will be to talk with your co-parent. Will he or she agree to a move, at least temporarily? Remember that if you have a court order, you may still be violating the order, even if the other parent agrees to what you’re doing.

If the other parent will not agree to the move, or if your move will violate a court order, the best approach is to have your lawyer quickly draft a motion or file a lawsuit to modify or establish custody. This motion or lawsuit should outline the reasons you need to move quickly and temporarily leave the children behind. If you have not had a discussion with the other parent, your lawyer may also want to send a letter directly to him or her. That letter can explain the situation and clarify your intentions. Usually, you’d send this letter simultaneously with the court filing so the other parent is on notice.

What to Do After You Move

You will want to begin the evidence-gathering process at your new location as soon as you arrive.

Upon arrival at your new location, take the following steps:

  1. Prepare a space for each of your children at your new residence. Take pictures of the residence and every room in the residence. These will help you show the court that you are ready for your children to live with you.
  2. Investigate the school district and identify the schooling options best suited for each of your children. Be prepared to present evidence regarding these options to the court. If you aren’t sure what to do, talk with your lawyer about the types of information that you could gather.
  3. Depending on your children’s ages, determine the types of extracurricular and social activities in the area that would benefit each of your children.
  4. Brainstorm ways that the new location could benefit each of your children. For example, let’s say you have a child with bad allergies. Perhaps the new location is home to one of the top allergy clinics in the region. Or maybe your child has a learning disability, and your new town offers free after-school tutoring to learning-disabled children. Gather information that you can bring to the court to explain these benefits.
  5. If you would need child care, consider the type of care you would use and outline a care plan. Gather information about those services for the court.
  6. Determine the travel options your children could use to return for visitation with the other parent. What is the closest airport? Could they take a train? Outline these options and their costs.
  7. Tell your lawyer which extended family members are near your new home. Can they assist with child care and participate in your children’s lives? Be ready to explain what these family members can do and how their presence will benefit your children.
  8. Discuss with your lawyer any additional evidence that you can gather to show how the move will benefit your children.

What If I Move Without the Children and No Order Is in Place?

If no formal agreement or order is in place for custody and you need to move right away, file for custody with the court as soon as possible. Ideally, you’ll be able to file simultaneously with your move or within just a few days thereafter. There is no real legal consequence at this point, except that you might be creating a status quo where the children live primarily with the other parent because you are absent.

Bear in mind that while you are away, the other parent has the opportunity to work on creating a stable life. Sometimes that will convince a judge to leave the children in their current situation, with the other parent. That’s especially true if your new location doesn’t offer any benefits that are far superior to what the kids already have.

The amount of time that the children spent with each parent before your departure is certainly important to the court. If, before the move, you were the primary caregiver, and you only left so abruptly because the situation mandated it, the court should consider those circumstances in making its decision.

Remember that we are talking here about emergencies. Moving without the children in the scenarios described above is very different from moving far away on a whim. We are not looking at flights of fancy such as moving for a new boyfriend or girlfriend or moving for a temporary and unimportant job opportunity. The urgent situations we outlined are legitimate reasons to move first and figure out a plan later.

What If an Order or Agreement Is in Place?

Depending on the type of order or agreement you have, you could technically violate it by moving without the children. This could occur if your arrangement calls for you to spend significant time with the children and you are unable to do so after the move. However, it would be rare for the other parent to pursue that violation if he or she actually kept the kids during your absence.

If you move alone without the children, give adequate notice to the other parent about the situation and its urgency, and promptly file with the court to address custody, the court is unlikely to find that you violated the agreement or order.

Of course, if the other parent has minimal visitation and minimal ability to care for the children full-time, it may be best to take the children with you when you move. You would still need to file a motion explaining your situation as quickly as possible. While you may have to pay a premium to have a lawyer draft and file that expedited motion, it is worth the expense if it casts you in the best possible light to the court.

The more difficult scenario is when the children have significant time with both parents and you need to move immediately to another state. These are tough situations. Often, there is no good answer. You may face the luck of the draw as far as how your assigned judge views your case and whether that judge thinks you made the right decision. As upsetting as that may sound, unfortunately, it is often the harsh reality of custody matters.

What’s the Bottom Line?

It can’t be overstated that there are no easy answers in these challenging situations. Judges do understand that life happens. But sometimes judges have to make tough choices when one parent has to move far away. Yes, sometimes judges decide cases on their instincts. Sometimes there really is no rhyme or reason to why the judge picked one parent to have custody. Judges have to make a decision, just like you did, and it’s not always the right decision.

If you are the parent who has significantly more time with the children, it may be easier for you to move and take the children. If both parents share significant time with the kids, the decision is usually much harder for the court. It would be nice if there were a magical formula or a crystal ball to see the future, but there isn’t. Consult with a lawyer to plan your best course of action.


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