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Can I stop my spouse from taking the children away before our divorce?

Divorce is rarely a quick and clean event. In most cases, there is a slow buildup of conflict that leads to the filing of a petition for divorce. Often, one spouse will leave the marital home to live separately while they wait for the divorce process to conclude. If your spouse decides to live elsewhere before the court hands down an official custody award, can they take your children with them? Is there anything you can do to stop them?

Threaten to obtain a court order

Family courts in Texas do not look kindly upon one parent attempting to deprive the other parent of access to their children. While your spouse is free to leave, removal of your children against your will is a violation of your right as a parent – as well as a violation of your children’s right to have access to you.

If your spouse is planning on taking the children, you must make it clear that you do not give your permission for them to remove your children from the home. Make it clear that, if necessary, you will not hesitate to seek a court order compelling your spouse to return their children to the marital home until the divorce process is finalized.

What can I do if they have already taken the kids?

If your spouse has already moved out with the children against your wishes, time is of the essence. If a judge sees that your children have been living with your spouse outside of your home for a long period of time, and that you have done nothing to get them back, then it could have an effect on their final custody award.

Judges always put the best interest of the child first when awarding custody, so if they decide that preserving the status quo is best for the children, it could give your spouse an advantage in the ensuing custody battle.

As soon as your spouse moves out with the children, you should contact an attorney immediately and file an emergency petition with the court. Contact your spouse and demand that they bring the children back, and keep a record of this request (such as by screenshotting text messages or keeping emails). Make it clear that you want your children back, and that you are willing to go through the proper legal channels to make it happen.

Children suffer enough during the divorce process without being deprived of one of their parental relationships unjustly. By taking swift and uncompromising legal action, you can ensure that your children stay in your family home until the court decides on a custody award.