Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
Question: My ex-husband and I have legal joint custody of our two minor children (boy and girl both 12 years old). I live in South Carolina with the children and he lives in New Jersey. He has made no attempts to see his children until recently. He wants the children to go to New Jersey for Christmas break but, he only has a one bedroom apartment in which he shares with his girlfriend. I feel that is not adequate housing for the children. If I am required to have each child have their own space, shouldn’t he? Do I have to send them even though he only has a one bedroom and the children don’t have their own space?
Answer: Typically, in order to have physical custody, a parent is required to have space available for them. In this case, the court may require him to find a more suitable living arrangement for visitation purposes, then again if he doesn’t get to see them very often, and vice versa, and if he doesn’t have the means to rent a larger space, the court may consider the circumstances and allow it. But be careful, as you need to balance that against the childrens’ need to be able to have a relationship with each of their parents, and you don’t want to be seen by the court as trying to hinder that. Also, you absolutely have to abide by the order, in order to not send them you will need to have the court update the order to reflect the changed circumstances.
