Can I Take My Child If We Separate?

Parental Rights While Still Married


When a couple separates, there is often conflict over the rights of each party. One of the most important of these is the right to physical custody. Physical custody, or the right to have your child live with you, is assumed to be jointly held when a couple is still married. Separation alone does not establish custody. That being said, a parent who separates from his or her spouse cannot take the child without the agreement of the other parent or permission from the court.

If you separate from your spouse and leave the family home, you are permitted to take your child with you if your spouse provides his or her consent. Married parents are free to make their own decisions on physical custody and parenting time if they can agree. If you take your child without agreement, your spouse can take legal action to enforce his or her custody rights.

You can seek permission from the court to take your child with you, but you bear the burden of demonstrating why it is in your child’s best interests. If you already have a divorce case open, the judge can issue a temporary custody order for the divorce proceedings. Temporary custody orders can provide children stability during the potentially lengthy divorce process.

In many separation and divorce cases, both parents will share legal custody while one parent has sole physical custody. The judge will consider many factors including who the primary caretaker was prior to the separation, the involvement of both parents in the child’s life, and the emotional impact the custody arrangement will have on the child. Bear in mind that the judge can also grant you shared physical custody. This means your child will live with both of you.

If one parent is awarded sole physical custody in a separation, the judge may grant the other parent visitation or parenting time rights. You should speak with an experienced New Jersey child custody attorney if you have questions about temporary custody during your divorce proceedings. An attorney can help you defend your rights without violating the other parent’s.


Are you separating and want custody of your child? The attorneys at the Williams Law Group, LLC know how important your custody rights are and will help you get an order that will protect those rights. Located in Union, New Jersey, Williams Law Group, LLC provides compassionate and dedicated legal services to Union, Bergen, Essex, Hudson, Morris, Monmouth, and Middlesex counties, and the surrounding areas. Our knowledgeable attorneys handle divorce and family law, child custody, and child abuse/neglect cases. Call our office at (908) 810-1083, email us at, or contact us through our confidential online form to schedule a consultation so you can work with an experienced New Jersey divorce and child custody attorney.


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