An all too common question among people who are contemplating moving out of a residence that is shared with the other parent and minor children is "if there is no custody order in effect, why can't I just move out and take the kids." The short answer is that you can do that, but you probably shouldn't.

In an ideal world, even in instances of separation and divorce, parents would share equal time with their children and cooperate in determining what is best for them. As it stands, cooperation and harmony are more the exception than the rule when it comes to parents parting ways, hence the necessity for custody court. When parents can't or won't determine what is in their children's best interest, a judge gladly will; and when he or she makes that determination, being the first party to abscond from the children's home won't endear you to the court.

In the Commonwealth of Pennsylvania, statutory law requires a trial court to analyze 16 specific factors before entering a determination in custody. Included among those factors are the following:

  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party?
  • Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs?
  • What is the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another?

Taking the children out of their home while dad is at work or mom is away for the weekend likely torpedoes some (if not all) of the above factors before an action in custody is even filed by the abandoned parent who, incidentally, suddenly looks far more like a victim than he or she may deserve.

Lest anyone think that the simple solution to this problem is to move out of the Commonwealth of Pennsylvania and into another state that looks more kindly on such behavior, beware that any state within which children resided for the previous six months (or less if a child is not yet six months old) shall be considered the children's "home state," within which jurisdiction is vested. Under the Uniform Child Custody Jurisdiction and Enforcement Act, adopted by all 50 states and the District of Columbia (as well as some other territories of the United States), this home state analysis will apply.

In the absence of abuse or a genuinely compelling reason, removing children from their home and away from one of their parents simply because no order prohibits such behavior frequently leads to winning the battle but losing the war. Unlike almost any other court proceeding, it's not about you; in custody actions, it's all about the children.