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My Spouse Left With the Children – What Do I Do?

When two parents decide to get a divorce, one will typically move out of the family home to make the living situation less tense. Usually, the children will stay with the parent that chose to stay in the family home, but occasionally, one parent will take the kids with them to stay at a friend’s, a family member’s, or even a brand new home. While many parents feel that this sort of arrangement makes sense, removing a child from the family home is highly frowned upon by the courts, and can have negative consequences for one or both of the parents.

Consequences of Moving Out with the Children

When a spouse moves out with the children before a Florida divorce is final, and before the judge can come up with a fair and reasonable custody arrangement – and assuming that the remaining parent is a fit parent – the custody outcome is dependent upon what the remaining parent does or does not do to get his or her children back.

The decision to remove the children from the family home is not viewed favorably by a judge—unless there are extenuating circumstances that create a risk to the children should they stay. Assuming that there is no risk to the children, however, if the parent who removed the children from the home did so without consulting with the remaining parent, the judge will likely grant temporary custody to the parent who stayed. The courts will always try to do what they feel is in the best interests of children of divorce; remaining in the family home and in the same school provides continued stability during an otherwise chaotic time, and is therefore deemed to be in the children’s best interests.

If your spouse moved out with the children without consulting with you first, it would be in your best interest to seek immediate relief in family court in the form of a temporary restraining order (TRO). While a TRO may seem a bit drastic, it allows you to get your children back into a familiar and stable environment and to sort out any other issues without having to worry about where your children will be living. If, for any reason, the judge does not grant you a TRO, your filing will at least put the court on notice that you did try to seek temporary custody, and that you did not feel that the move was in the best interests of your children.

Consequences For Not Seeking Temporary Custody

If you do not seek temporary custody of your minor children in the event that your spouse moves them out of the family home, it could backfire on you. Because the divorce process can last months or even years, if you wait for the judge to hand down the final custody agreement, your children may already be reestablished in a new home and a new school. If this is the case, it is very unlikely that the judge will see fit to uproot your children again only to move back into their old family home and school.

Furthermore, if you do not take any legal actions after your spouse moves out with the children, it may appear to the courts that you consented to the move. If, months later, you claim that the move was not in your children’s best interests, the judge may dismiss your claims on the grounds that had you really thought the move was detrimental to their well-being, you would have taken legal action sooner. On the other hand, by filing for immediate relief in the form of a TRO, you are essentially telling the courts, “I did not agree to this move, and I do not feel that it is in the best interests of my children.”

When You Both Agree to Let One Parent Move with the Children

If you and your spouse both agree that it would be in the best interests of your children to move out of the family home with one parent, you should not allow the move to take place until you have sought and received temporary visitation rights from the Florida courts. With an order from the court granting you temporary visitation rights, you are ensuring that you will still get to see your children and maintain a relationship with them. Without a temporary order from the courts, however, you do not have any legal grounds should your spouse suddenly decide that he or she does not want you to see the children.

Consult with a Boca Raton Child Custody Attorney

At the Law Offices of Schwartz | White, our child custody lawyers can advise you on what legal actions to take should your spouse move out of the family home with your children before filing for, or during, a Florida divorce. To consult with a Boca Raton child custody lawyer, contact our family law firm at 561-391-9943 to schedule a private consultation today.



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