Can a mother take her children and move without telling the father?

UPDATED: Jul 25, 2011

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Can a mother take her children and move without telling the father?

My brother and sister-in-law have been separated (not legally) for 2 months. My sister-in-law decided to go stay with her parents (who live 2 1/2 hours away) for, which said, a couple of weeks and she took their 3 children( ages 9, 6 and 1) with her. She served my brother with divorce papers after she had been gone a week and listed her and the children’s address as her parents and said she has now moved there with the kids. She never advised my brother that she would be permanently staying and will not let him take the children(there is no threat of danger). Is this legal?

Asked on July 25, 2011 Washington


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I am so sorry for your brother.  He needs to get an attorney immediately to deal with this matter.  He needs to file an answer to the petition for divorce and he needs to speak with the attorney about filing an expedited motion (called an Order to Show Cause in some states) requesting that the children be returned to their home and for temporary custody pending the outcome of the divorce. He needs to argue that she has taken the children too far away for any meaningful contact with him for visitation and custody.  He agreed to the move there in the beginning and that may be her argument at this point.  But he can state that the agreement was supposed to be on a temporary basis and not permanent.  Now, make sure that the divorce papers are proper in the first place.  In order to file for divorce you need establish residency not only in a state but in a county.  Good luck to you.

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