Divorced Parent's Consent to Move Children?

by Donna

I am a mother of 2, about to be married to my childhood love, who is on active duty. If my fiance / spouse receives overseas orders, am I required to have parental consent from my children's father to move them with me?

First, congratulations on your upcoming marriage. I wish you every happiness.

Without seeing your court documents concerning your custody arrangements, it's impossible to give you a definitive answer. Many custody arrangements specify that the custodial parent must obtain permission from the non-custodial parent (or the court) before the child is removed from the state, which, of course, you would be doing by taking them out of the country.

Your custody documents may specify whether you need permission from the court or the father to take the child out of the state (or country). That's a pretty standard provision. So before doing anything else, dig out your divorce papers and read them. The answer may be there.

If not, make a call to your divorce lawyer and ask if your custody agreement requires permission from the other parent before moving the children out of state. If you've moved since your divorce, the law in the state where you currently live may be different from the state where you were divorced, but as a general rule, the state where you were divorced will retain jurisdiction to resolve all matters relating to child custody disputes.

If you don't have a divorce lawyer to call, or don't want to call him or her, my best recommendation would be for you to take your divorce papers and any associated custody arrangement documents (if they're separate), along with any and all modifications, and consult with a military attorney (JAG) at the on-base legal assistance office nearest you.

To be eligible to meet with them, you must be in possession of a valid military ID card, so before you are married, your fiance would have to make the appointment and the two of you would have to go together.

If your children's father is on active duty, and they have ID cards but you do not, call the legal assistance office and ask if you can make an appointment on behalf of the children. You may be able to use a child's ID card to establish eligibility for services, since this question relates to the children and their welfare.

A father who is an active participant in his child's life, exercising visitation rights, etc., would have a legitimate objection to the child being taken farther away, especially overseas, because that would affect his ability to see his child on a regular basis, and would significantly increase the expense of doing so.

On the other hand, if the father is not exercising visitation rights, the court may be inclined to grant permission for you to move the child with you even if the father objects.

You may very well get permission from the court to take the children with you and your new husband to an overseas duty station, but you may have to agree to pay for airfare for the child to return to the US to visit with his father at least once a year if the father is exercising visitation rights. That would be fair, since you would be responsible for the need for such a ticket.

You should be aware that, depending on the overall situation and that of your ex, as well as your relationship with him, you may also face a child custody battle, with your ex attempting to gain custody to prevent the child from being taken out of the country. That is a very expensive process, however, and unlikely to be done just for spite. An attorney would require a substantial retainer payment (in the neighborhood of $5,000, or possibly more, depending on where the suit is filed and how nasty or complicated it's expected to be) before agreeing to file such a child custody lawsuit.

I hope that helps. Have your fiance make an appointment with the legal assistance attorney on base, and go with him, taking along the necessary documents to be reviewed.

Best wishes for "happily ever after."

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Nov 16, 2011
Similar Question, spin on custody battle
by: Anonymous

If the non custodial parent elects to pursue custody, merely because they feel that they provide a more stable environment than the military custodial parent requesting to move overseas to be with her new military husband, how much burden of proof would they be required to show as a means that they can better provide, support, and care for the minor child?

In this case it absolutely gives all the power to the non custodial parent to control what the custodial parent does for fear of losing their child despite being a great single mother.

What choices does it leave an individual who is trying to make improvements in their life through military service and a new mil-mil marriage?

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