About Crossing State Lines with Children

This is especially true with the issue of child custody or parenting time. Courts have come to expect that emotions run high, and tend to have a modest tolerance for parties figuratively “crossing the line” when involved in a family law matter.

There is, however, another very important line that you do not want to actually cross without the permission of the Court or the other party when dealing with a child custody or parenting time matter – a State line, or a national border. Not only can this become ugly, it can become somewhat complicated. As a general rule, Courts do not tend to look favorably upon parties crossing state lines without permission, or in violation of a court order – particularly when leaving the state with the child is challenged or opposed by the other party.

It is important to note here that anyone who shares custody of a child is subject to the laws discussed here – not just parents. Therefore, grandparents, aunts/uncles, domestic, or same-sex partners sharing joint custody of a child are equally protected by the laws prohibiting crossing state lines with a minor child without permission from the other party.

e.g. Dad has a court order from a New Jersey Court which affords him two consecutive months of parenting time with their daughter during the summer. Mom has legal and physical custody of the twelve year old daughter who now lives with her in the State of Virginia, but sends her to stay with her dad in New Jersey for the summer. The entire family previously lived in New Jersey before mom and dad divorced. Daughter stays with dad for one month, but is fearful of dad because he is constantly yelling at her – even for the slightest of mistakes. Daughter calls mom to pick her up from dad’s home in New Jersey. Mom hears that her daughter is afraid, and immediately comes to pick her Daughter up to take her back home to Virginia – before the two month period expires.

The party affected by crossing the state lines without permission has the ability to request that the Court order the return of the child to the State. This is often done by way of an “Order to Show Cause” (which is an emergency hearing) at which typically only one of the parties appear.

There are some exceptions to the appearance of only one party, however, if the parties are currently involved in or have recently been involved in litigation before the same Court. In such a case, the Court may require that the other party’s attorney be contacted to appear on his/her behalf. Typically, however, if there is no attorney appearing, and the party filing for a return to the state cannot get in touch with the other party – their request to return to the state will more often than not be granted.

e.g. Dad is not too happy about what occurred, and is obviously upset with mom for picking up the child during his parenting time. Dad knows that he has the upper hand, because he has a Court order which states that he should be enjoying parenting time with his daughter. He goes to the court and tells the Judge that mom removed his daughter from the State without permission, and in violation of the parenting time agreement. He, of course, does not mention that he yells at his daughter, or that she is fearful of him. Dad tells the Judge that mom and daughter are refusing to get in contact with him, and that he has no way of getting in touch with mom. Dad is granted the order to show cause to return his daughter to the State of New Jersey. Dad immediately takes that order to the police station or prosecutor’s office, and they get in touch with the police in Virginia, where mom lives. Mom arrives in Virginia, and is welcomed by contact with the police, who threaten to charge her with Violation of a Court Order Regarding Custody or Visitation (commonly referred to as “custodial interference”), if she refuses to immediately return the child to the father in New Jersey. Mom is of course panicked and unsure of what to do.

The above scenario is unfortunately a very real, very common one. And unfortunately, by choosing to first remove the child from the State, without seeking permission from a Court and informing the Court of the dangers up front, the mom in this example has possibly damaged her credibility with the Court in New Jersey if she now seeks to argue that their daughter is afraid of dad at a later time.

There are several other complications which may arise in issues of child custody and parenting time, when the parties live in, or seek to move to, other states. There are consequences that a party might never even think of. I’m sure that the mom in this scenario did not think that she would be facing possible criminal charges upon her return to Virginia. The best thing that mom could have done would be to seek the advice of a family law attorney to act on her behalf before leaving the State of New Jersey. The second best thing to do would be to seek the advice of a family law attorney immediately upon return to Virginia.

e.g. Mom called [a family law firm], and [they filed] a motion to reconsider the Order to Show Cause on mom’s behalf (or better yet, mom had hired [that same law firm] preemptively before removing the child), citing past instances leading to the daughter’s well-documented fear of the father, and requesting that the father address his issues with anger prior to resuming unsupervised parenting time.