Often, people want to know whether they can leave the state with their child during or after a divorce. Like many answers to legal questions, a good attorney will tell the client, “it depends.” Here is a very brief overview of the law and considerations.
Prior to the Divorce Process
If the two parents are still married and there has not been a complaint for divorce filed in any court of this state, Ohio law states that parents stand on equal footing as to custody of the children, and that both parents are considered the residential and legal custodian of the children. This means that yes, technically, there is no crime involved for taking the children and moving to another state. As a legal custodian, the parent that wants to move certainly can determine where and with whom the child shall reside.
However, it should be noted that while a parent that is the legal custodian of the children can move and relocate with his or her children, this fact may in fact impact a court’s later determination on how to allocate parental rights and responsibilities (custody and parenting time/visitation). Some of the factors that a court is to consider is whether a parent is or is planning to establish a residence outside of Ohio, whether a parent is more likely than the other to facilitate and promote visitation, and finally, whether the other parent has been guilty of parental kidnapping. Please note that although no criminal charges will follow, taking the children out of state may be considered “parental kidnapping.”
During the Divorce Process
When the parents are not yet divorced, but a complaint for divorce has actually been filed in an Ohio court, there still has not been a FINAL allocation of parental rights and responsibilities. However, unless the parents are still residing in the same household, the Court will issue temporary orders as to custody and visitation. The Court will normally award one parent the interim temporary custody of the children during the pendency of the case. If the parent that was not designated as the temporary custodian takes the children, then that parent will be guilty of contempt of court for violating a valid court order.
Furthermore, it is very common and routine for both parents to seek and obtain temporary restraining orders during the pendency of the case. Normally these restraining orders prohibit a parent from removing the children from the state of Ohio, except for vacations of 14 days or less. Again, if the non-residential (temporary) custodian removes the children to another state, that parent will be in violation of a valid court order.
If a parent believes it is necessary to move to another state, that parent will have to file a motion requesting the court allow that parent to do so.
Again, this is a very brief sketch as to this subject and it cannot be urged strongly enough that any parent that wants to move out of Ohio consult an attorney to ensure that it will not negatively impact that parent’s case for custody or subject him or her to civil or criminal penalties.