Legal Separation and Child Custody Agreements

What to Do When the Other Parent Violates the Custody Agreement

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Legal separation carries special implications for child custody and parental rights. For instance, the question of whether the parent who shares custody can relocate with a child without the consent of the other parent can become murkier in a legal separation. It depends on a few factors, including the state of residence, whether a legal separation agreement exists on paper and whether that agreement contains a custody provision.

For the purpose of this discussion, let's assume a legal separation agreement is in place. Whether a parent can relocate their child first depends on the type of custody the parent has.]

How Type of Custody Impacts Parental Rights

  • Sole Custody - One parent has the right to make all decisions for a child including where the child lives and the child's activities on a daily basis. The non-custodial parent might have visitation rights, but not the ability to make any decisions for the child. If the mother has sole custody, then the father cannot relocate.
  • Joint Physical Custody - Reflects the child's right to reside with each parent day to day. A joint physical custody arrangement - also called "shared physical custody" - would permit a child to reside with each parent separately, on different days. Several factors must be considered before a parent in this situation can relocate with a child, including whether or not the both parents agree to the move.
  • Joint Legal Custody - Both parents have the right to make day to day decisions for the child concerning education, medical treatments, religious activities, after-school activities, etc. Parents should make decisions together, or at least consult each other beforehand. Is it feasible that one parent can act without the other's consent? Absolutely. However, when that happens, it is considered a violation of the court order, which may result in loss of joint custody status.

    When There Is No Court Custody Arrangement

    If there is no court arrangement in this situation, it is assumed that the parents plan to continue to act as if they are still married. In that case, either parent would legally be able to transport the child to and from school, obtain school records, or even transfer the child to a different school.

    If a court order has been issued, the parents should present it to the child's school and the school's administration should act accordingly. If there is a joint custody arrangement, the school should require the consent of both parents for all major decisions that affect the child.

    Parents who want to prevent the other parent from relocating with their child should consider requesting sole physical custody of the child. Additionally, parents without a formal court agreement should consider drafting a parenting plan. Although parenting plans are generally reserved for divorced couples, a separated couple may easily benefit from having a more formal written custody and visitation schedule.