Separation and Custody: Should You Move Out?

Deciding to separate from your spouse prior to or during divorce is a big decision.  In situations involving domestic violence, the alleged offending spouse can be ordered to leave.  But in most cases, one spouse or the other must make the decision to leave.  You may wonder if there are consequences – especially regarding custody or parenting time – if you are the one who moves out; and the answer is yes.

In this article I will refer to the “marital home”.  But the same principles discussed herein apply to non-married parents who reside together while raising a family.

If you are considering a break-up or separation it is likely due to sustained tension in your relationship and household.  Separating can ease some of the tension between you and your spouse (or co-parent), but you should be prepared for the impact on your children.  If you leave and take your children with you, be prepared for your spouse or co-parent to seek a structured parenting time arrangement with the children.  If you leave and permit your children to remain with your spouse in the marital home, understand that your access to your children may be limited.  The reasons for this can vary, but may include the ages of the children, work schedules, school or extracurricular schedules, or simple anger and resentment from the other spouse or even your kids.

In addition, you will not have free rein to come and go in and out of the marital home once you leave.  If you need to retrieve certain items you should try to schedule a specific time when you can do so.  In regard to your kids, be prepared for their age-appropriate feelings.  Younger children will be confused; older children may feel angry.  These normal emotions can impact a parenting plan.  You can petition the court for a structured parenting or visitation schedule, but it takes time .  If you can work out an agreement with your spouse or co-parent before you leave the entire family will be better off.  If you and your spouse or co-parent cannot agree, the court will need to decide for you.  The Court’s custody analysis always begins with the “best interest of the child” standard which usually includes the concept that all children are entitled to quality time with both parents.  Making that happen is the challenge.  Counseling or family therapy may be ordered by a court to preserve or repair a parent/child relationship.  Of course, if you are subject to abuse or other forms of domestic violence you should do everything necessary to protect yourself and your children – including moving out – and the history of domestic violence will also be important in a custody analysis.

Consult with an experienced family law attorney prior to leaving the home.  Your lawyer can evaluate your particular circumstances and give you guidance on how best to proceed to strengthen and advance your overall custody goals.

For more information or to schedule a consultation, contact the office at: 609-904-3020.

Best, Stephanie