Can you even consider moving out of state with a child and no custody agreement?
Are you wondering, “If there is no custody order in place can I take my child?”
What do you do if there is no custody agreement and the father took the child?
We are going to teach you everything about moving out of state with a child and no custody agreement.
We are also going to teach you how to handle the father taking the child with no custody agreement.
So, keep reading.
Table of Contents
To make this post easier for you to navigate, we have created a table of contents.
Click on any of the links below, or keep scrolling to start from the beginning.
- Moving Out of State With Child No Custody Agreement
- What is a Custodial Parent
- If There Is No Custody Order in Place Can I Take My Child?
- How Far Can I Move with Joint Custody?
- Non-Custodial Parent Moving Out of State
- Non-Custodial Parent Does Not Return Child
- No Custody Agreement Father Took Child
- Reasons a Judge Will Change Custody
Moving Out of State With Child No Custody Agreement
When the custodial parent is moving out of state with the child and no custody agreement, it can create relocation disputes.
It also makes custody arrangements difficult.
Moving out of state with the child and without a child custody agreement can be illegal too.
And even if you get it approved, it definitely makes co-parenting difficult.
It forces the child to have a long-distance relationship with one parent.
If I Leave My Husband Can I Take My Child?
Wondering, “If I leave my husband, can I take my child?”
We get asked this question a lot during our free divorce consultations.
So here’s the deal.
When you file for divorce, you will show up to a divorce hearing.
At this hearing, the judge is going to create temporary orders on things like:
- child support
- child custody
Often, the judges will want to keep the child living in the current conditions.
For example, if the child is living with the mother full time, then she will get sole temporary custody.
(Remember that these are temporary orders until the divorce gets finalized.)
The judges want to disrupt the child’s life as little as possible.
So, this means that if you leave your husband, you should take your child.
That is if you want full custody.
The judge will most likely make the child custody orders reflect the child’s current living situation.
There is not ANY guarantee that this is what will happen.
But it is what we see happen a lot of times.
It’s important to note that the father will still get visitation rights.
If you don’t want primary physical custody, then don’t take the child if you leave your husband.
What if you leave your kids without trying to at least get temporary custody?
This may seem like you approve of the other parent having sole custody.
In child custody cases, the judges tend to keep up the ‘status quo’ for the child.
This is especially true if the children are doing well and have adjusted to the custody arrangements.
Can I Move Out of State With My Child?
If you and the father were never married and there is no court order for custody, you can move out of state with your child.
And you can only move out of state UNTIL there is a child custody order.
But this changes if there is a child custody order in place.
Once the father files a paternity case, he can try to get custody and parenting time or visitation.
If you move out of state with your child and the father files a petition for child custody, here’s what you’re facing.
First off, it depends on the residency of the child.
If the child has lived in the state for 6+ months, then the state’s family courts can make decisions about the child.
Let’s say you lived in Georgia for 12 months (meeting the 6+ month residency).
And you decided to move out of state with your child.
If the father still lives in Georgia, then he will file for child custody in Georgia.
Since the child’s residency is Georgia, Georgia courts can make decisions about custody.
But if you moved out of Georgia 6+ months ago, the child’s new residency is in the new state.
The child custody battle will take place in the child’s state of residency.
When you move out of state with your child, a custody battle can be expensive and inconvenient.
The residency state’s courts can order you to bring the child back.
If they do, your local sheriff’s department may show up and take the child back.
What is a Custodial Parent
A custodial parent is the primary parent that the child lives with.
This means that:
- the courts have given one parent primary legal custody
- the courts have given one parent primary physical custody
- the parents have reached an informal child custody agreement
- there is only one parent involved in the child’s life
What is a Non-Custodial Parent?
A non-custodial parent is one who does not have physical custody of the children due to a court order.
When the child lives with only one parent, that parent is the custodial parent.
The other parent, who has visitation rights, is the non-custodial parent.
If There Is No Custody Order in Place Can I Take My Child?
If there is no custody order in place can I take my child?
On the surface, it may seem so.
But if there is no custody order, both parents have an equal right to custody.
This means that either parent can lawfully take legal possession of the child at any time.
But that doesn’t mean that if there’s no custody order in place that you should just take your child.
To take the child (even without a custody order) without the other parent’s consent can be held against you in court.
Sometimes the other parent takes the child and you cannot work out an agreement for the return of the child.
If this happens, you can file a petition for child custody.
You can also ask the judge to order the child to get returned.
How Far Can I Move with Joint Custody?
“How far can I move with joint custody?”
That’s another question we get asked a lot as child custody lawyers.
If you move with your child with a custody agreement, this could be ‘removal.’
Removal is when the custodial parent moves the child away from the non-custodial parent.
We can also call removal relocation.
Removal creates issues with child custody.
It affects the non-custodial parent’s ability to see their child.
It can also have effects on the existing child custody or visitation orders.
If you move out of state with your child and ‘remove’ them, you may end up back in court.
How Far Can A Parent Move With Joint Custody?
When it comes to how far can a parent move with joint custody, you’re usually limited to the state you live in.
A parent moving out of state with the child and a custody agreement will be breaking the law.
The law does not consider vacation moving out of state with the child.
Most of the time, you have 60 days before they consider it to be a permanent relocation and not vacation.
How far a parent can move with joint custody depends on:
- if the other parent agrees to it
- you get granted a new custody order allowing the relocation
Joint Custody Relocation
When it comes to joint custody relocation, the court considers several factors:
- child care responsibilities
- involvement of each parent
- distance between the child’s current home and new location
- the difference in education between the current and new school district
- the motive of the parent trying to move with joint custody
- employment opportunities of the moving parent
- location of the child’s other family members
When the parent is moving out of state with the child, the judges also consider how the move affects the child’s:
- emotional, physical, and developmental needs
- social advantages
- availability to contact both parents
- home environment
- increased travel
Considering Moving Out of State With Child?
If you have child custody and are moving out of state, you have to file a child custody modification.
This is true even if you have full custody of your child.
Moving out of state with a child affects the custody and visitation schedule of your child for the other parent.
Even if both parents are okay with this, you still have to file a child custody modification.
If the non-custodial parent is not ok with you moving out of state with the child, things are going to be tougher.
You might want to hire a child custody lawyer.
This is because they will know how to have the highest chances of success when moving out of state.
Even if you have full child custody, the judge will want to make sure it’s in the child’s best interest to move out of state.
Most courts want both parents to be equally involved in the child’s life.
Moving out of state can disrupt this for the child and non-custodial parent.
Usually, moving the child away from the non-custodial parent is not in the child’s best interest.
In this case, the judge will not allow you to moving out of state with the child.
The only reasons that they would allow you to do so is if moving out of state improves their life.
This could be in the form of:
- a significantly higher paying job for the custodial parent
- better education for the child
- moving the child closer to their extended family
- more stability for the child
You should consult an attorney so put together your presentation for the judge.
This will give you the best odds at being able to move out of state with child custody.
Joint Custody One Parent Moves Out of State
Remember that the goal of child custody is to do what’s in the best interest of the child.
With joint custody, one parent moving out of state REALLY complicates things.
The parent moving out of the state needs court approval to move.
The courts let the parents try to agree on a custody solution on their own.
A lot of times, the parents cannot agree on child custody when moving out of state.
In this case, the courts will make the decisions for the parents.
When moving out of state, the parents need approval from the courts that issued the custody order.
When there’s joint custody and one parent moves out of state but doesn’t want the child, primary custody goes to the other parent.
Can a Parent Take a Child Out of State With Joint Custody?
Even with joint custody, a parent cannot take a child out of state.
Taking a child out of state with joint custody breaks the custody agreement.
If you move out of state without court approval, you can face:
- court fines
- jail time
- loss of custody
But what if you are traveling out of state and not moving?
When traveling, a parent can take a child out of state with joint custody.
Usually, when it is that parent’s turn, they don’t have to do anything special.
There are no restrictions for traveling out of state with children.
Make sure you only do it during your parenting time.
It is a good idea to cover your bases and let your ex know in case there’s an emergency.
But everyone’s ex reacts differently, so you will have to make that judgment call.
It’s important to note that your custody agreement MIGHT include restrictions.
These restrictions can include a parent taking a child out of state.
If your child custody order does not restrict travel, then you should be fine.
Non Custodial Parent Moving Out of State
For non-custodial parents moving out of state, there are no restrictions.
But the child cannot move with you.
If you want to move out of state, you will have to adjust your child custody agreement.
This includes figuring out a new out of state custody and visitation schedule.
It also is relevant even if you want to give up custody and visitation when you’re moving out of state.
To make these child custody modifications, you’ll have to show up to family court.
You or your ex need to file a child custody order modification with your local family court.
(This is the court that issued the child custody orders.)
Laws On Moving Out of State Child Custody
If a custodial parent wants to move out of state with the child, we need to talk about the laws.
The laws on moving out of state with child custody say that a custodial parent cannot move out of state.
That is unless you get approval from the courts that issued the child custody orders.
If the custodial parent moves out of state with the child and no permission, it gets messy.
For moving a child out of state without permission, the judge will give the custodial parent a contempt order.
A contempt order usually includes fines and jail time.
Judges can even change the child custody agreement in favor of the non-custodial parent.
(Wondering how can a mother lose custody of her child? This is it.)
Custodial parents moving out of state must modify their child custody arrangements.
To do this, file a petition to modify child custody with the court that issued the child custody order.
This is the case whether the custodial parent has full custody or joint custody.
They can get child custody modifications:
- by reaching an agreement between both parents
- providing written notifications to the other parent
- getting a court order
Reaching an Agreement with the Other Parent
The easiest way to approach moving out of state with a child is to have your ex agree to it.
If both parents have an amicable co-parenting relationship, then this is usually easy.
(This is usually the case if you have an uncontested divorce.)
But most people don’t have such a sweet gig.
Parents who agree on moving out of state with a child still have to file their agreement with the courts.
If the courts do not approve the modified custody arrangement, the prior custody arrangement will remain in effect.
This means that you cannot move out of state with your child.
You will have to honor the custody arrangement per the laws on moving out of state with child custody.
Providing Written Notice to the Other Parent
Custodial parents have to provide written notice when they are moving out of state with a child.
This is true whether the other parent agrees to the custodial parent moving out of state or not.
Custodial parents moving out of state have to provide written notice to all people with visitation rights.
This includes the other parent or any family members.
The notice has to be given to all parties at least 30 days before they move.
Providing a written notice that you are moving out of state with the child is not your ticket to freedom.
Non-custodial parents can contest a relocation request when the custodial parent is moving with the child.
Non-custodial parents can file a petition to block the custodial parent from moving with the child.
The judge may not tell the custodial parent that they cannot move with the child.
But they may modify the child custody agreement so the child does not move with them.
Getting a Court Order to Move Out of State with the Child
Most of the time, the parents cannot agree to let the custodial parent move out of state with the child.
When they cannot agree, the issue has to go to court.
The judge will determine whether it’s in the child’s best interests to let the child move out of state.
If the parent is wanting to move out of state ‘just to move,’ they most likely won’t approve it.
Some reasons the judge will approve the parent with child custody moving out of state are:
- a new job opportunity
- increased income for the custodial parent
- moving closer to custodial parent’s family
- educational opportunity
- new marriage
The judge will weigh the pros and cons of the parent with child custody moving out of state.
Judges usually favor custodial parents moving for
- more income
- a better lifestyle
- more stability in the child’s life
These pros outweigh any cons as a result of decreased visitation for the other parent.
At least, in the eyes of the laws on moving out of state with child custody.
Can My Wife Take My Child Out of State Without My Permission?
You may be wondering, “can my wife take my child out of state without my permission?”
If you’re a wife wondering, “Can my husband take my child without my permission?” the same goes for you.
While parents are married, you don’t need the other parent’s consent to take the children out of state.
If you are going through the divorce process, taking the child out of state can be parental kidnapping.
What is Parental Kidnapping?
Parental kidnapping only happens AFTER a custody order is in effect.
This can be a temporary child custody order or a permanent one.
Until there is a custody order, both parents have equal rights to the child.
Parental kidnapping is when a parent takes the child to a place where they are likely not to be found.
Remember that taking them on vacation out of state without consent can qualify for this.
Some states don’t have defined parental kidnapping laws.
When this is the case, parental kidnapping usually falls under normal kidnapping.
The only reason concealing a child would not be parental kidnapping is for safety.
If your wife is taking your child out of state to protect them from you, it’s not parental kidnapping.
Non-Custodial Parent Does Not Return Child
If a non-custodial parent does not return the child, this is considered parental kidnapping.
Parental kidnapping is hiding the child in a location where they cannot be found.
But it also has to be violating the child custody order.
If there is no child custody order, then it is not considered kidnapping.
If you have a custody order and the non-custodial parent does not return the child, you have two options.
If the child is in danger, you should file an EMERGENCY motion for temporary order.
Usually, when you file an emergency motion, you can see the judge the same day.
Make sure that you bring the evidence you need to provide the judge when you file the emergency motion.
If the judge grants you the temporary order, the order goes into effect immediately.
This order will have clear instructions for an officer to force the non-custodial parent to return the child.
There will be another hearing scheduled where you and the non-custodial parent have to show up.
At this hearing, the non-custodial parent who did not return the child can defend themselves.
If the child is NOT in danger, you should file a motion for contempt.
In that motion you should request:
- attorney fees
- make-up parent-time
The motion for contempt will explain how the non-custodial parent violated the custody order.
(i.e., how the non-custodial parent does not return the child.)
Since you are filing for contempt, you have to provide evidence of custody violations.
The judge will weigh your evidence against the non-custodial parent’s defense.
If the judge rules in your favor, they will file an order against your ex.
This order will detail how they did not return the child and what they need to do to comply in the future.
Can I Move Out of State With My Child Without Father’s Permission?
Let’s say you have never been married and there is no child custody order.
If this is the case, then you can move out of state with your child without the father’s permission.
When you are not married but have a child, then the child custody laws grant the mother sole custody.
The father can have a DNA test done to prove that he is the biological father.
After that, he can file a petition for child custody.
Only after there is a child custody order can the father have a say in whether you take the child out of state.
If the father has been involved with the child up until this point, a judge may favor the father more in a custody case.
If you have filed for divorce, separated, and have a custody agreement, you need the father’s permission to move out of state.
You cannot do anything to violate the child custody agreement.
Moving out of state messes up the custody agreement.
To move out of state with the child, you’ll need to figure out a NEW custody agreement with the father.
Then, you can file a petition to modify the child custody agreement at the courts that issued the child custody agreement.
Once the judge approves of the reason for moving and the new custody agreement, you can move out of state with your child.
Can My Husband Take My Child Without My Permission?
If there is no custody agreement in place, your husband can take your child without your permission.
Without a custody agreement, both parents have equal custody and visitation rights.
Your husband is allowed to take his child for his equal visitation period without your permission.
In fact, without a custody agreement, you are in the wrong if you are not giving the father time with the child.
If there is a custody agreement, then you and the father have to abide by that custody order.
The father cannot take the child without your permission if it goes against the custody order.
If the father takes the child without your permission, document this.
You can document this via text messages between you and him.
Or you can document it with video on your phone.
(It’s better to do both.)
Don’t act irrational or confrontational.
Just get your child back from the father and document that the father took the child without your permission.
Then reach out to a child custody lawyer and give them this proof of custody violation.
If they believe that you have a case, they can file a motion.
These motions can lead to fines, jail time, or change in custody.
No Custody Agreement Father Took Child
If you have full custody, it’s not legal for the father to take the child from you.
But if there is not custody agreement and the father took the child, there’s not much hope.
It really depends on what “the father took the child” means.
Did the father take the child and you haven’t seen the child for two weeks?
Did the father come take the child to spend a couple of days with him?
With no custody agreement, the father can take the child.
The father is entitled to equal custody and visitation when there is no custody agreement.
This means that both parents should be making major decisions for the child.
And that the child should spend equal time with both parents.
But if your father has taken the child and is not returning the child, contact your child custody lawyer.
They will be able to file a petition at the court and get a custody agreement in the works for.
Taking Child Out of State Without Custody Agreement
Wondering if you’re allowed to be taking a child out of state without a custody agreement?
This is a common question we get.
If there is no custody agreement, this makes things a little blurry.
If there is no custody agreement, then both parents have equal rights to the child.
But if you are taking the child out of state without a custody agreement, this can get held against you in court.
To take a child out of state, you have to get the other parent’s consent.
We recommend getting the consent in writing, via email, or via text.
That way, you have proof that the other parent gave you their consent to take the child out of state.
You don’t want them to tell the judge later on that you are taking the child out of state without their consent.
Reasons a Judge Will Change Custody
Let’s say the judge does not approve the parent moving out of state to move the child.
In this case, the parent moving out of state can still move, but they cannot move the child out of state with them.
What if the parent moves the child out of state without a new custody order?
When this happens, the parent may face:
- courts sanctions
- jail time
- amended custody arrangement
The new child custody arrangement will favor the parent not moving out of state.
Most of the time, the courts will grant them sole custody.
Child custody arrangements can be difficult to navigate.
You should consult a child custody lawyer if you:
- are moving your family out of state
- plan on moving out of state with a child and no custody agreement
- are considering joint custody relocation
They will understand the laws on moving out of state with child custody and know how to safely proceed.
This is true whether you want to keep child custody or not when moving out of state.
How To Get Permission to Move Out of State With Child
Wondering how to get permission to move out of state with a child?
The first step you want to try is coming to a custody agreement with your ex.
When moving out of state with a child, both parents have to agree to the child custody modification.
Even if both parents agree to the child moving out of state, the judge will have to approve it.
The judge wants to make sure that the child moving out of state is in their best interests.
If it’s not, then you won’t get permission to move out of state with your child.
You have to provide a written notice that you are moving out of state with your child at least 30 days before the move.
The steps on how to get permission to move out of state with a child are:
- work on a child custody modification with your ex
- file a petition for child custody modification
- schedule a court hearing
- present the case to the judge
- wait for the judge’s decision
Modifying child custody can be difficult.
Hiring a child custody lawyer gives you the best chance to change child custody.
(Or to modify it.)
How Does Moving Out of State Affect Child Support?
So, you’re still thinking about moving your child out of state.
But you’re wondering how does moving out of state affect child support.
When you are transferring child custody to another state, it does not affect child support.
Child custody and child support are separate issues.
If one of the parents are moving out of state, either one can file a petition for modifying child support.
The child support laws allow parents to modify the child support every two years.
Usually, parents are moving out of state for a promotion and hiring income at a new job.
When this is the case, the income levels that the child support was based on are different.
This is grounds for modifying child support.
But if you are the parent moving out of state, changing child support can harm you.
If you are getting an income increase, you’ll have to pay more in child support.
(Check out this child support calculator.)
But if you have sole custody, you may have to pay less in child support.
So, chat with your child custody lawyer and see what your best options are.