Can I Leave My Spouse and Take My Child With Me?

When life leads you in a different direction than your spouse, you may come to the realization that it is time to move in another direction. If you leave your spouse, taking your child with you is not always legally allowed, and that could mean that you are violating the child’s right to have access to both parents. At Indigo Family Law, our family law attorneys in South Carolina can offer insight and legal options that can help you make the right decision right now.

Taking Your Child With You When You Leave Your Spouse

You want or need to leave this marriage and want your child to go with you. You may have some very hard questions to ask, including this one, ‘If I leave my husband and take my child, is it kidnapping?’ It is important to consider the details of your situation, but these insights could help you.

In marriage and divorce, you and your husband have equal rights to your child. That means that while you can make the decision to leave your spouse at any time, your spouse still has the legal right to spend time with their child. You can leave with the kids at any time – and often that means alerting the other parent of your plans to do so – but you must inform the other parent where the child is at all times.

The court will ultimately decide who has the right to visitation and custody of the child based on the facts in the case. Most of the time, the court wants both parents to have a relationship with the child as long as they believe that is in the best interest of the child. If you do not believe that is the case, you will have to show the court that it is.

Can I leave My Husband and Take My Child with Me Now?

You may be ready to leave, and while you can take your child with you when you do, you must inform their other parent of where the child is at all times. If you do not do so, that could be considered kidnapping. Even in emergent situations, there are several steps you can take to minimize the risk to you and your child.

  • Get help from the police if there is any risk to your child’s safety.
  • Contact a family law attorney to discuss your legal options for leaving with your child first. Keep in mind that anything you tell your attorney cannot be repeated to anyone else.
  • If you take your child when you leave, and there is no risk to your safety, be sure to communicate with the child’s other parent where the child is at all times.

This helps alleviate the risk of being accused of kidnapping the child. What you do not want to do is scare your child or put them in some type of harm. With the help of a child custody attorney, we can discuss all of the legal resources you have available to you in this situation.

What to Do If You Want a Divorce

In situations where you wish to file for divorce, what you should not do is leave your house. Unless there is some level of risk to you, it is better to file for divorce while living in the family home, in many cases. That allows you to show that you have not abandoned the marriage or the house and may help you maintain ownership of it.

If you move out without informing your spouse and leave your child behind, that could be considered abandonment. That could work against you later if you want to have custody of your child. In these situations, the best situation to take is to be open and honest with your spouse about your intentions to end the marriage.

This may allow for a productive discussion and movement towards the divorce process. At that point, make sure you have your own divorce attorney, someone who can help you navigate your rights personally. Taking these steps first, before you leave your home with or without your child, can be critically important to protecting your future.

My Husband Won’t Let Me Leave with My Child – What Do I Do?

In a situation like this, numerous factors must be taken into consideration. The first is to determine who has legal custody of the child. If there is a child custody order in place, you must follow that custody order.

If you have custody of the child and the other parent does not, through a legally filed custody order, you can take the child with you when you leave. If the other parent does not have custody and will not allow you to do so, you may wish to contact the police for guidance. You can always contact our divorce attorney for guidance on what to do right now.

If you do not have custody established through a court order, leaving with your child may be problematic if the other parent does. In this situation, you may need to seek out legal guidance on what your legal steps are to obtain custody of the child. Do not do anything to violate a court order because that could put your case at risk.

Can a Mother Leave With Her Child?

As noted, this depends on the custody situation present in every case. The law does not allow either parent to take the children away from the other parent when there is no custody order in place, which is common in situations where a couple may be divorcing. As the mother of the children, you have the right to your child as much as the other parent.

The decision about whether to do so or not may depend on what is best for the child. The court always favors the best interests of the child. If you are trying to take the children out of a stable home where they have lived for some time, the court may not see this as a beneficial step unless you can prove that it is in the best interest of the child.

Other factors are likely to be taken into consideration in this matter as well, such as the child’s age, where they go to school, and their relationships with other relatives. If a mother takes a child out of an established lifestyle without regard to the child’s wellbeing, that does not look favorable on the part of the mother.

What to Consider Before You Take Your Child Away from the Other Parent

The situation is not uncommon. One or both of the parents want to file for divorce; one needs to leave the home, but both parents do not want to leave the child. In a situation like this, take into consideration what the best decision for the child is, not the parent, and consider the following:

  • Determine if custody is established through a court order: If there is a court order, follow it closely.
  • Speak to an attorney before making a decision: Your attorney can give you insight into what the legal options are for you in this situation.
  • If you leave the home, inform the other parent: Make sure they know that you are leaving the home and taking the children with you. Telling them where you are going, such as to an apartment nearby, means you are not kidnapping the child from the other parent.
  • You can leave your home: If you and your spouse determine it is best for you to leave the home, you can do so with or without your children, depending on the situation.
  • Always focus on the child’s best interest: In a case like this, it is critical to view what the court sees and believes, not what you feel and think.

When you speak to your South Carolina family law attorney, you will gain insight into what all of your legal rights are and develop a strategy that can help you and your children leave the home in a safe manner without creating legal complications. Your best interests can be determined by working with a trusted attorney who can explore a variety of solutions for your needs. Choose an attorney you can trust to help you navigate these legal scenarios.

Making Decisions About Children During Divorce

It can be very challenging for people who are ready for divorce to come together to make decisions about what happens to their children, and both people agree. Yet, it is nearly always in the best interests of the child for you both to make these decisions together so that both parents have equal access to the child. Your South Carolina family law attorney can help you by focusing on areas such as the following:

  • Where should the children live most of the time?
  • Will living in that home mean the child needs to switch schools?
  • What arrangements can be made and agreed upon so that each parent has time with the children?
  • When will the children see each parent? Create a schedule/parenting plan that works for all needs.
  • What happens to the child during holidays and summer break?
  • What other factors could influence these decisions, such as childcare, grandparents, or other relationships within your life?

Child custody is a core part of the divorce process but not the only thing to consider. You must also consider your financial wellbeing, how you will pay for a second home, and what assets will go with you or stay with the other parent. While this is quite a bit to think about, discussing all of these factors with your attorney can help give you more insight into what your legal options are and what steps you can take to create an agreement that you both need.

What to Do If You Need to Protect Your Children

In some situations, you may wish to leave your spouse because you and the child are not safe or you no longer feel it is in the best interest of the child to remain in that arrangement. This can happen in situations where one parent is abusive in some manner, for example. Your best strategy is to consult a family law attorney privately to discuss your case and navigate this very sensitive situation.

In some situations, it may be essential to file a request for a protective order, an order issued by the court to eliminate your spouse’s contact with you or the child, based on what is included within the order. This does not eliminate your fears, but it may give you some legal protection over what occurs next. If you believe you are in emergent danger, leave the home, call 911, and request legal assistance for your situation.

You have rights, even if your spouse is abusive and tells you that you do not. Your attorney will help you navigate what to do in this situation so that you do not violate any laws that could later be used against you and may impact your custody rights. Your attorney can also help you learn about resources to support you during this transition and keep you and your child safe.

If You Are in Danger, Call 911

Do not wait to call for immediate care if you are at risk. Whether this is the first time or it happens often, your safety and that of your child depend on what you do now. Contact your attorney as soon as possible for additional guidance.

Schedule a Consultation with our South Carolina Family Law Attorney Before You Decide

With such critical and impactful decisions to be made, it is always wise to have a trusted, experienced, and compassionate family law attorney by your side. At Indigo Family Law, our years of experience, proven experience handling even the most delicate of cases, and our dedication to our clients makes us a good choice for many. Learn more about how we can help you by calling us to learn more about your legal rights.