Occasionally I have a client that has a child or children, is already separated from their significant other, and now they want to move out of state. There is no court order in place as to custody or visitation, and they wonder if they can just leave. The short answer is “yes”, it is your constitutional and God-given right to go wherever you want. Generally a court cannot order anyone to remain in a particular place or state (with some exceptions, such as a defendant in a criminal case that has been ordered to remain in the state/county).
However, simply leaving the state can cause other issues and headaches down the road. Let’s say your spouse has regular visitation with your child, and suddenly you remove the child from the state, making it virtually impossible for your spouse to exercise his or her parent-time. In that scenario a court may order that visitation continue as it was, or order the statutory minimum visitation. Now you’re suddenly obligated by court order to allow your spouse to see the child every other weekend/one night a week, if not more. So even though the court cannot order you to return to the state, if you ignore the visitation/parent-time order you will be violating the court order and could face severe ramifications, such as contempt of court. Plus, you would need to hire local Utah counsel and you’d probably need to come back to the state for hearings, etc. So leaving the state before getting a court order can be a gamble.
In the alternative, if you go to court to get a custody order in place before you leave, you may face the same situation wherein you are not able to leave because the court determines that it is in the best interest of the children to have regular visitation with the other parent, and your reasons for moving are outweighed by those interests. Again, the court can’t order you to stay, but they can endorse a parenting plan that does not lend itself to out of state exchanges, thereby compelling you to remain in Utah.
In theory court’s should make the same decision whether or not the move has already transpired, but I believe that in certain situation, all things being equal, a court might be more likely to rule in favor of the move if that party has already moved and established a new residence. If a court does “sign off” on the move, it will generally order long distance visitation, per Utah law.
So unfortunately there is no right answer, but the conservative approach would be getting permission before the move, a more aggressive/risky approach would be asking for forgiveness after the move has already taken place, and face the risk of having to move back.
If you are considering a move to a different state and you have a split-parent family, contact Pearson Law Firm for a free consultation with an experienced Utah divorce attorney. Your attorney can help you determine the best route for your personal situation, and discuss potential ramifications. Call today! 801-888-0991