Can I get temporary or emergency custody to move my children out of state until my move away request is granted?
Ask your lawyer. The answer to this question is going to vary case by case and state by state.If there’s an existing custody order, you will need to obtain leave of the court that issued the custody order in order to move away. Whether the court will be inclined to grant that leave is another matter and will depend on all the facts of your case. Even if there is not an existing custody order, the other parent could, upon getting wind of your intended move, obtain a writ of ne exeat or an emergency custody order stripping you of the right to take the children with you, since precipitous moves have historically been a prelude to procedural games designed to cut the other parent out of the children’s lives.A law called the Uniform Child Custody Jurisdiction and Enforcement Act, which is in effect in all states, provides that even after you move, the state you left is most likely going to be the proper forum for litigation, so if you move without notice and wait for the other party to commence the required court proceedings, you’ll be at that much more of a disadvantage.Regarding procedural remedies such as temporary custody, you’d have to identify the jurisdiction for any specifics.In my state, Pennsylvania, a temporary custody order or a ne exeat in a new case is “special relief”, Pa. R.C.P. No. 1915.13, but if there’s already a custody order, there is a requirement that the relocating parent give notice to the other parent if the relocation is of such a character that whatever existing custody schedule there is will become impracticable as a result. The court may grant interim leave to relocate pending a hearing but only if it finds “exigent circumstances.” 23 Pa.C.S. § 5337(g).¹ A party’s failure to give the required notice in a timely manner may be held against them. Id. subd. (j).Motivation matters. Although the well-being of the custodial parent is a legitimate concern, Gruber v. Gruber, 583 A.2d 434 (Pa.Super. 1990),² it is not controlling by itself, Ketterer v. Seifert, 902 A.2d 533 (Pa.Super. 2006). If the court feels that the move is for insufficiently weighty reasons, relocation will be denied. S.M.S. v. M.J.S., 76 A.3d 541 (Pa.Super. 2021. (leave to move to place to be with boyfriend whom petitioner had no plans to marry and where she had no offer of regular employment was denied).The distance of the move and the degree of alteration of the other parent’s custodial time will also play a role. If you are moving right across the line in the same metropolitan area, it might not be a big deal at all. If you’re moving from Pennsylvania to California, it will be.The person seeking to move bears a burden of proof that the move will be in the child’s best interest.Notes:¹ ‘Exigent circumstances‡ aren’t defined in the statute or the case law. The statute does prthat 60 days‡ notice of the relocation is to be given. Presumably the temporary order provision could be invoked if something happened that made the move on shorter notice than that and no court hearing date were available within the time before the move, which would imply that some compelling reason the move is not only desirable but necessary would have to be shown. At any rate a proper fact hearing is required. Plowman v. Plowman, 597 A.2d 701 (Pa.Super. 1991).² The Superior Court, in Gruber, surveyed the law of several other states, including New Jersey, Minnesota, and Florida, and followed them in holding generally that[t]he court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [non-custodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.583 A.2d at 439–40. The substance of the Gruber analysis has now been incorporated into the statute.