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Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 19673
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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I have recently remarried and i have two children with my ex

Customer Question

I have recently remarried and i have two children with my ex husband. My current husband is re enlisting in the Army. I have physical custody of my children now with my ex have joint legal. When my husband gets stationed in 3 months can I legally take my kids with me even though my court order says I must stay in NM?
Submitted: 3 months ago.
Category: Military Law
Expert:  NYFamilyAttorney replied 3 months ago.

Hello. I’m a family lawyer and appellate attorney with 36 years’ experience. I look forward to helping you today.

Please note:This is general information for educational purposes and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an attorney on this site. You are advised to retain your own attorney.

At the end of this discussion I'm going to ask you to please rate me as that's the only way I get credit for my time here today. Are you okay with rating me? Thank you!

I’ll be busy typing up your answer but I’ll be back shortly.

Customer: replied 3 months ago.
Expert:  NYFamilyAttorney replied 3 months ago.

Relocation cases are the toughest to do because there's so much at stake. That being said, you have a court order that says you have to stay in NM. Is that part of a parenting plan that was adopted into a court order?

Either way, even if it's a parenting plan, it became part of a court order. When you have a court order, you cannot, unfortunately, just take the children with you or you will be violating the order and your ex can bring you back to court for all kinds of things, for violation, penalties, and even contempt. You will have to do this in court, I'm sorry to say. However, I'm just the messenger, and I know you want the truth from me, so I'll make sure you get that.

Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion to modify the parenting plan and timesharing agreement as soon as they know they will be moving. A relocating parent should understand that New Mexico will maintain jurisdiction over child custody and timesharing despite the move.

If parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing

As with all custody decisions, the court‘s primary consideration in evaluating a modification of a parenting plan to accommodate a parent‘s move is the “best interests” of the child or children involved.

Where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent‘s reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child‘s circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child‘s relationship with the other parent.

Your reason to move is a valid one, so hopefully the court will look favorably at that. A new parenting plan will have to be made. This can be expensive as parents will now need to pay for travel costs to arrange visitation and can be very difficult when a child is too young to travel alone. The time, distance and a child‘s school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult an attorney if they are faced with such a potential change to custody and timesharing.

Let me know if you want me to find a family lawyer for you in your area. I would need to know the biggest city/town near you so I can find lawyers for you. I do this free of charge for my customers here, and while we're not allowed to recommend a specific attorney, I can point you in the right direction.

Does this answer your question?

Customer: replied 3 months ago.
I do have a parenting plan as well as the custody order. I have been told by the military recruiter that i have no obligation to stay in NM even with the custody order when it comes to the US Military and having to be stationed with my husband. With that being said he did say that the custody would be revised after the moving process. I am afraid to follow either answer with the possiblilty of losing my children.
Expert:  NYFamilyAttorney replied 3 months ago.

I understand what you are saying. If you would like, I can send this question over to someone who does military law to answer the question for you. It would be unlikely for the court not to allow the children to go because of the reason unless they have a very strong bond with the father, in which case the court will scrutinize that. A court can always say you can move but you can't take the kids. That's not what you want. If you would like to have an attorney who does military law review this, I can send it over to that category.

Customer: replied 3 months ago.
could you please do that for me. I would like to see what a military expert would say.
Expert:  NYFamilyAttorney replied 3 months ago.

Sure no problem. I gave you the information as to what a court would do re: an order, but it could be very different for military. Good luck!

Expert:  NYFamilyAttorney replied 3 months ago.

I will note here that you are looking for someone with military experience.

Customer: replied 3 months ago.
It says by email but I have not put my email anywhere for anyone to contact me
Expert:  Marsha411JD replied 3 months ago.


I am a Military Law Expert and have reviewed your question and the response of the previous Expert. They are absolutely correct in all of the information they have provided. The recruiter you or your husband has spoken to is not only incorrect, he is violating the law by practicing law without a license, when he says you have the right to take your kids out of the State merely because you are a military spouse. That is just not true. You can certainly leave the State and move with your husband, but they kids will have to stay unless you go through the process that the previous Expert described to you. If you don't do that, and just leave with the kids, your former husband can petition the Court for full custody and also ask that the Court hold you in contempt of Court. Federal law has no provisions for child custody in these case, State law applies only.

I am not sure why this recruiter has made these statements other than the fact that they have a quota to fill and are concerned that your husband will not reenlist unless you can just pack up the kids and go. Whatever his motivation, he is just dead wrong. All that said, as long as you can convince the court that the move will benefit the children (assuming that you cannot work out a different visitation and custody plan with their father), the court may very well approve the move of the children. You might want to review the information at the following link. It references military members, but it applies equally to the child custody issues of their spouses:

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the box above, I will receive credit for assisting you today. Thank you

Expert:  Marsha411JD replied 3 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 19th. For some reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I received neither.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating,please let me know so that I can inform the Site administrator.Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue,if needed. You can bookmark my page at:

Thank you.

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