Divorces do not occur suddenly from one day to the next. Typically, there is a long period in which a couple has a falling out and grow distant. During this period, it is not uncommon for one spouse to move out of the marital home in preparation for initiating the divorce process. If your spouse decides to leave your marital home, are they legally allowed to take the children with them? Can you stop them?
The legality of removing children from their home
The short answer is that it is not illegal for parents to take their children out of the marital home, as long as they have parental rights over the children, and as long as there is no court order to the contrary.
For example, if a court has issued a protective order due to domestic abuse, or if one parent has sole custody of the children, then the other parent cannot legally take the children without their co-parent’s consent. Absent these two situations, both parents have the right to keep their children with them.
Why it’s beneficial to seek a court order
However, just because your spouse can legally take the children when they leave the house does not mean that there is nothing you can do about it. If this happens to you, and you are interested in fighting for custody of your children, then it is in your best interest to obtain a temporary custody order from the court as soon as possible.
Make sure that you make it clear to your spouse, in writing, that you object to them taking the kids, and that you want the kids to remain in the marital home with you. As soon as possible, ask your attorney to request a court order demanding that your spouse return the kids to the marital home, if possible.
Courts always put the best interest of the children first, above the desires and convenience of the parents. If your spouse takes the children out of the marital home for several weeks or months before the divorce, and you do not register your disapproval of the situation, then the court very well might decide that it is in the best interest of the children to remain where they currently are when it comes time to establish a custody award.
What you do in the first days and weeks following the initiation of the divorce process can sometimes make all the difference in how your divorce ends up. By taking proactive measures, you may be able to increase your chances of a favorable child custody determination.