Last Updated on August 11, 2023 @ 8:30 am
One of the most common questions we have in the Father’s Rights area of the law is what happens when a wife wants to move out of the house and take the children with her. People want to know the answer to this question more often than almost any other because father’s confronted with this situation are scared they will lose the right’s to their children. We’re here to let you know that father’s rights attorneys will fight for you but you must contact one immediately to protect your rights.
So, What Are My Rights if She Threatens to Take Them?
Right off the bat, you need to tell her that she cannot take your children away from their house. She has no right to do so because as a married couple, both of you have the same legal rights to joint physical custody and joint legal custody to the kids (in some states, this may be called “allocation of parental responsibilities” – so be aware that means the same thing as custody). Tell her that she can leave the home and move, but she can’t take the children with her – and do so IN WRITING. Then, immediately contact a father’s rights attorney who will put the gears in motion on your behalf.
When one parent attempts to drastically alter the parenting time situation by leaving the house, it is often necessary to file an emergency petition with the court to stop her from doing so. This is especially true if your wife is threatening to take the kids far away – such as another state. You can’t wait for it to happen, you must act quickly or she will have the opportunity to settle in a new location, enroll the kids in a new school, and make the argument to the court that the kids are stable in their new environment – this must be quashed immediately.
Emergency Motions May Be Needed
Contacting an attorney in this situation means filing for divorce so that you can immediately file a motion or a petition for custody and possession of the children (what is also called the primary allocation of parental responsibilities and the parent with the majority of parenting time). Once the initial divorce is filed, it may be necessary to file an Emergency Motion to get in front of a judge within days. Some judges court schedules only allow you to appear for an initial court date weeks in advance, and then allow 21 or 28 days more for your wife or her attorney to respond to your motion. But an Emergency Motion will get you and your lawyer in front of a judge in days, and that may be the main wall against her taking off with the kids.
Another option, once the divorce and possibly an emergency motion is filed that you might take, is to file a motion that asks for you and the kids to have “exclusive possession of the marital residence.” This means that you are asking the court to enter a court order that states that you and kids are awarded (temporarily) the house live in and that your wife has to move out. This is how you protect your rights as a father, but you must act quickly and be precise.
Attempt to Get an Agreement – With Leverage
An experienced father’s rights attorney will immediately put together some type of parenting agreement and will try to find a compromise with your wife or her attorney regarding the custody of the children, a visitation / parenting time schedule, and a plan for who pays what when it comes to child support and any other expenses needed for the kids. Rather than simply going right in to war, a father’s rights lawyer knows that the battle needs to be fought from multiple angles – one of which is attempting to find a compromise. But, and this is the big one here – it is always best to negotiate from a position of strength. This means that your emergency motions, the petition for exclusive possession of the marital residence, and anything else that is filed can be used, before being ruled on by the judge, as leverage to force her into having a meaningful discussion and compromise. A good divorce lawyer will always tell you that coming to an agreement is often better than rolling the dice with a judge if possible.
What If My Wife Already Took My Kids?
Now is the time to act—you cannot wait even one day or you will put yourself at a serious disadvantage in the courts. If this just happened in recent days, get a father’s rights attorney who will immediately file an emergency petition for custody, visitation, parenting time, and a return of possession of the children. Waiting weeks or months damages your chances at gaining custody because the courts will not want to upset the new schedule that kids may have become accustomed to.
When a wife takes the kids – especially out of state – most judges view this as a refusal to work together and co-parent. When it comes to which parent should have primary parenting time or custody of the children, the courts in all 50-states use what is known as the “best interest of the child” standard. that is what it comes down to – what is in the best interest of the child. Every state uses many of the same or similar tests to determine this, and there are a lot of different tests, such as: each parents living arrangement; the health (mental and physical) of the child and of each parent; past and present involvement in the life of the child; any history of domestic violence, and one of the big ones – whether the parents can work together and cooperate to encourage a close and continuing relationship with the other parent. It is this factor that the judge will notice that your wife has attempted to ignore, so you must show that you are willing to facilitate a relationship and she is not.
Taking a Child Out of State
In many states, the process of taking kids out of state (usually called ‘removal’ or ‘relocation‘ – depending on the state) is not allowed without seeking a court order. When you file a Petition for Dissolution / Complaint for Divorce, what you have done is forced her to stay within a certain geographical boundary with the kids or she will have likely violated a provision within the law. This means that neither person should make any type of significant change to possession or ownership of large property, personal items, or even the residential location/state of the children.
For example, some metropolitan areas have even had the laws changed to be more restrictive than they were in the past. Illinois, for example, used to allow a parent with primary custody to move anywhere within the state. The laws were re-written in 1/2016 and placed a limit on where someone can move with the kids if they live in Cook County (Chicago) or surrounding counties. The limit was 25-miles – and the point of the limit was to stop one parent from moving 2-hours away from the other parent to make parenting time difficult for the other parent.
When a mom tries to remove the children from the state they are currently living, time is not on your side. Allowing the kids to be settled in another state is bad, but the first thing that you will be up against if you don’t act fast is the court viewing a father that waits months to file as if that father doesn’t really care. If it was so important, why didn’t the dad file in court sooner? Was making his truck payment on time more important than seeing his kids? This is what the court will initially view of the case. So, the most important thing to do if your wife leaves the state with the kids is to file quickly – any way you can. Sell your car, get a loan, do whatever you need to do to get in front of a judge immediately.
Act Fast – Get a Father’s Rights Lawyer
Every once in a while these things turn extremely ugly, and if this is the case, and you fear for the safety of your children, do not know where they are, or believe your wife may be attempting to leave the state that you live in, contacting the police is also a good idea. You have the right to know where your kids are and the right to have them live with you. Waiting is the number one reason father’s lose their custody cases. You cannot, in the eyes of the court, claim both: 1.) you want custody of your kids, AND 2.) but you waited for 5-months before filing to see them. Get started immediately by speaking with a father’s right lawyer who will fight for you and your family.