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Legal Separation & Child Custody Agreements

What to Do When the Other Parent Violates the Custody Agreement

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Question: Can a father who shares custody relocate with a child while her mother is hospitalized?

A reader asks:
A friend of mine is separated from her husband. She's also primary caregiver of their 9-year-old daughter. However, she had to go into the hospital temporarily, so she made arrangements for her daughter to stay with a friend. While she was in the hospital, though, her husband took the child from the friend and attempted to relocate the child, and even change her school, miles away from the mother's home. Is this legal?

Answer: The short answer is: it depends. Some additional questions I have are:

  • What is the state of residence?
  • Is there a legal separation agreement in place, or is it a verbal agreement?
  • Does the separation agreement have a custody provision?

For the purpose of responding to the question, I will assume that there is a legal separation agreement in place.

Whether it is legal for the father to relocate also depends upon the type of custody he has.

  • Sole Custody - One parent has the right to make all decisions for a child including where the child lives and the child's activities on a daily basis. The non-custodial parent might have visitation rights, but not the ability to make any decisions for the child. If the mother has sole custody, than the father cannot relocate.

  • Joint Physical Custody - Reflects the child's right to reside with each parent day to day. A joint physical custody arrangement, also called "shared physical custody," would permit a child to reside with each parent separately, on different days. Several factors must be considered before a parent in this situation can relocate with a child, including whether or not the other parent agrees to the move.

  • Joint Legal Custody - Both parents have the right to make day to day decisions for the child concerning education, medical treatments, religious activities, after-school activities, etc. Parents should make decisions together, or at least consult each other beforehand. Is it feasible that one parent can act without the other's consent? Absolutely. However, when that happens, it is considered a violation of the court order, which may result in loss of joint custody status.

In the case of this particular question, it sounds as if the parents might either have joint legal custody of the child or no formal arrangement at all. If there is no court arrangement in this situation, it is assumed that the parents plan to continue to act as if they are still married. In that case, either parent would legally be able to transport the child to and from school, obtain school records, or even transfer the child to a different school.

If there is a court order at play, the parents should present the order to the child's school and the school's administration will act accordingly. In other words, if there is a joint custody arrangement, the school should require the consent of both parents for all major decisions that affect the child.

Parents who want to avoid having another parent relocate with his/her child, should consider requesting sole physical custody of the child.Additionally, parents without a formal court agreement should consider drafting a parenting plan. Although parenting plans are generally reserved for divorced couples, a separated couple may easily benefit from having a more formal written custody and visitation schedule.
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