Our divorce states we cannot move more than 50 miles from each other, but if she wants to move I have no problem with that. However, I want to keep my kids with me.
If she does not comply with the court order, and take my kids anyways, would this be considered kidnapping?
I live in California and she is moving to Texas.
Leigh Anne KretzschmarFamily Law AttorneySan Diego, CA ·
I concure with my collegues' answsers. I also suggest that you write to her to tell her that you object to the children moving away. In other words, have some sort of written proof that you notified her of your objection. If by email, ask her to respond so that the two of you can discuss the matter further. Lastly, due to the backlog of child custody/visitation mediation appointments (3-5 months), factor this backlog into your timing/need to seek the court's assistance in keeping the children here until this issue resolved. As these are very tough cases for the court, your interests would be best served by retaining a local attorney experienced in this type of situation.
It MIGHT be considered "parental kidnapping", and would almost certainly be a clear violation of the custody order. You and she should figure out a mutually agreeable arrangement for parenting these kids, BEFORE she moves. I suggest you consult an experienced family law attorney to assist you.
This response is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes and is not a legal consultation. You must talk with an attorney of your choice before making any decision about your actual legal rights.
If your ex-wife wants to move out of state, she most likely will need permission from the court. You would have to be given notice of that court hearing. She cannot violate the Marital Settlement Agreement or any other child custody orders previously order by the court. You may want to go back to court on an ex parte basis if you truly believe she will take your kids out of state without your permission to get an order specifically preventing from doing that. Contact a local experienced family attorney quickly to protect your and your children's rights
It is true that she would be violating the Order and technically she is not supposed to move without your written permission or a court Order, but if she leaves town and you do not stop her with appropriate court action, you will likely lose your battle for custody. It is imperative that you file your action before she leaves town.
Typically, moving without a change in your orders would be considered a violation of your prior court order. Your ex-wife may or may not request a new order, and if she does not, it would be in your best interest to bring up this issue yourself. There are situations where a parent has left California without permission or a new court order and the children were retrieved by law enforcement. That is an abrupt action for the children and an extreme circumstance that is exercised rarely and with forethought.
If your order states neither you nor your wife may move with the children more than 50 miles from the other party without a court order or the other party's consent, then her doing so without either permission or an order authorizing the move would be a violation of the court order. Although you could file a contempt action against her for a knowing and deliberate violation of the court order, they are expensive proceedings and do not typically resolve the problem, especially after a move has occurred. Kidnapping (a crime) occurs when someone takes, keeps, withholds or conceals a child and maliciously deprives a lawful custodian of a right to custody or a person of a right to visitation. However, if the person who takes and withholds the child(ren) has a right to custody, they are not guilty of kidnapping if they have a good faith and reasonable believe that the child(ren), if left with the other parent, will suffer immediate bodily injury or emotional harm.
You cannot get an order preventing your ex-wife from moving, only an order modifying custody and visitation in the event the mother moves. I strongly recommend you get such an order in advance if you know she is planning to move. You can either do this by agreement (which should be formalized into a stipulated order) or have the court decide what new child sharing arrangement the two of you should have in the event the mother moves. If she moves out of state, I assume your existing order will no longer be feasible, so you will need new child sharing orders anyway. If the two of you have joint physical custody, the court will need to decide what new custodial arrangement is in the children's best interests.
Anita Margolis, Esq.
