Can My Wife Leave with the Children?

Last Updated on January 19, 2023 @ 12:15 pm

You and your wife have just gone through the argument that was “the straw that broke the camel’s back.” She says she is leaving and taking the kids with her. Can she legally do this? How can you stop her? What can you legally do? What should you do if she does leave and takes the kids without your permission?

First, legally, (in most states), she cannot simply leave with the kids for an extended period of time without a court order or unless there is some allegations of domestic abuse. Even though this has seemingly happened for years, the mother has no more right to the children than the father, especially if there is no divorce or custody agreement in place. As a married couple, you share joint-legal custody of the children. That does not change simply because she has decided to leave you.

What Should You Do If Your Wife Leaves with the Children?

1. Protecting Your Rights as a Father – you have specific rights as a father and you need to protect them immediately if your wife leaves with the children. If you simply allow this to happen without any recourse, you may actually lose your rights when the divorce and custody case go in front of a judge. To protect your rights, immediately contact a Family Law attorney specializing in divorce and custody cases. The most important thing to do is to ask quickly – if you take weeks or months to act, the court will view it as if you don’t really care that much and it makes it look like you are just ‘going through the motions.’ Act fast, and demand that your children be returned to your care or that you are given equal parenting time with them. Nothing destroys a case better than not acting soon enough, especially if a parent takes the children out of state.
2. Get an Agreement in Place – your attorney should contact your wife’s attorney immediately to begin working on an agreement. If you just show up and take the children, it could turn into a legal mess for you, so be patient and leave it to the attorneys. At the very least, the contact is documented so the courts will know you simply did not allow this to happen and that you are very interested in remaining in your children’s lives. Make the agreement reasonable and the chances that you will find common ground are higher than if you make a demand that seems too off-balanced in your favor. Ask for 50/50 parenting time and negotiate from there.
3. Create Visitation Schedule and Stick to It – the time you spend with your children will be scrutinized heavily during the divorce process. If you plan to fight for custody, make sure you are still involved in all parenting decisions for your children. You also need to make sure when the children are with you, you are there for them. Do not just pick them up and put them under the care of sitter, family member, or friend. Be there as their father and spend quality time with them. This will matter when the case goes in front of a judge. In addition, do not miss any scheduled visits. If you have agreed to a schedule, stick to it so missed times cannot be used against you during the custody hearing. Be on time, be engaged with your children, and unless you are taking pictures or videos of the children having fun with you, keep your phone in your pocket.

Father’s Rights during and after Divorce

As a father, you have certain rights during the divorce process. Unless there is a reason preventing you from being involved in their life, such as abuse or a substance abuse problem, your wife cannot prevent you from exercising these rights. Some of these rights are:

• Continued relationships with the children – you cannot be kept from your children, period. If your wife is not allowing you to visit or call the children, this needs to be addressed immediately. You also have every right to attend events and activities, such as sports games, plays, graduations, etc. Hopefully, she works with you to ensure you are still very much a part of the children’s lives but if she is blatantly preventing it, you need to make your attorney aware of it ASAP and handle it legally by filing a motion with the court.
• Preventing adoption – when an ex-spouse remarries, she may want her new husband to adopt the children. As the paternal parent, you have every right to prevent this from happening. Of course, being active in their lives makes your case all that much stronger if it were to go to court. No judge would allow this to happen if the father is meeting his obligations and sticking to his custody or visitation agreement.
• Provide financial support – to protect your ongoing rights, you must provide financial support to the children. It may seem a bit out of the ordinary, but consider having a child support agreement put in place immediately if you agree to have the children live with your wife. This is documented proof that you are taking care of your financial obligations to your children. Staying current with these payments ensures that legally, your rights will remain in place. And most importantly – save every receipt, check, or other proof of money you give to her – if you give her cash, the court will act as though it never happened because there is no proof.
• Share joint custody – unless the courts have decided that you cannot have custody, you are generally entitled to share custody with your wife during divorce. She cannot force you to give up joint-custody unless you willingly do so.
• Make parenting decisions – as their father, you have every right to remain active in all parenting decisions. This means you can remain active in schooling, religion, health care, etc. If there are disagreements, you will have to sit down with your wife and come to an agreement. This also serves to show the court that you two are capable of working together and doing what is best for the children. Make sure you show up for doctors appointments, PTA meetings at school, and sports activities. Also, make sure the children complete their homework and document everything you do in a daily journal (short bullet points are perfectly fine).

Preventing Problems with Your Children’s Mother during Divorce

Once you and your soon-to-be ex have come to a custody agreement during divorce, it will benefit both of you to avoid conflict when it comes to the children. Of course, there are bound to be some small disagreements, just as there probably were during the marriage. But serious conflict is something you must avoid.

• Respect each other’s plans – planning ahead, especially when trips or special events are concerned, will help alleviate any problems. If there is going to be any type of a change to normal pickups or schedules, make sure it is discusses well in advance. Keep the lines of communication open to ensure you avoid unnecessary problems.
• Set boundaries – it is natural for both you and your ex to miss the children when they are not with you. However, you need to respect the time of the other parent. The two of you should set boundaries upfront in terms of how often you can call or text the children, save emergencies, when the children are in each other’s care. Obviously, the kids may want to share something with their mother or father when they are with the other parent, which should be allowed. However, when the children are not in your care, neither parent should constantly call or text the children to intrude on that parent’s time. Schedule an evening phone call or text and stick to the agreement.
• Stay consistent – consistency develops habits and habits breed comfort. If you show up when you are supposed to, even in bad divorces, many of the problems will start to dissipate. Do not give her an excuse to get upset or cause you problems because you were unable to stick to the schedule.
• Concise communication – nobody expects you to be “buddy-buddy” with your ex. However, you need to communicate to ensure everything regarding the children goes smoothly. If you cannot or do not want to directly talk to her, consider using one of the many online services that allows you to create schedules and leave each other messages. Keep in mind, though, words can be perceived in a variety of ways, especially when emotions are involved. Try to keep your messages concise and on point to avoid your words from being misconstrued and starting an unnecessary argument.

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