A divorce is often the end result of a years-long process in which the relationship between spouses slowly deteriorates. Occasionally, one parent will decide to move out of the family home before the divorce. If your wife decides to leave while you prepare for divorce, can she take the children with her? Or do you have the legal authority to keep them in the family home with you until the judge issues a final divorce decree and custody award?
In Minnesota, both parents have equal rights to their children. Unless a court order specifies that one parent is not to have contact with the children, or unless one parent is fleeing from the abuse of the other, parents cannot take the children away from each other.
This means that your wife cannot take the children without your consent before the divorce. If her actions are grave enough, they might even constitute parental kidnapping. Minnesota law prohibits anyone – even the child’s other biological parent – from taking actions that substantially deprive a parent of parental rights, time or custody when there is no court order to do so.
What you should do
If this happens to you, make sure that you make it clear to your wife that you want your children back. Take screenshots of emails, record phone calls, or otherwise document your requests. If your wife continues to deprive you of your children, and you have made it clear that you have not given her permission to take the children, then you may be able to use that to your advantage during the divorce process.
Minnesota divorce courts use the “best interest of the child” standard when making custody decisions. This means that whatever is best for your child is their primary motivating factor. Courts presume that, unless there is abuse, it’s in the best interest of a child to have a full relationship with both of their parents.
Thus, if the court sees evidence that your wife has taken steps to interfere with or limit your children’s relationship with you, it’s possible that that could have an effect on their final custody decision.
The months leading up to a divorce can be a heartbreaking time for everyone involved – particularly the children of the divorcing couple. Fortunately, if your wife attempts to remove the children from your family home without your permission, you have legal recourses to help you to get them back.