A friend of mine would like to divorce her husband. I don't know if he's aware of this fact yet. She also wants to move across the country with her three kids in order to have family support while raising them (no family here in New Mexico). However, she suspects her husband will not like that idea since he will remain in NM. So, she's planning to take a trip to Georgia to visit family and then not come back. At the same time she'll file for divorce.
I'm being a complete busy body by asking... but I wonder, is that even legal? Is a parent allowed to take their children out of state and not return them while filing for divorce? And then that makes me wonder, if she gets divorced, can she move then? Or would she always have to live in NM because that's where her ex will be?
(I don't think she has any intent to cut off contact between her kids and husband - she just doesn't want to have to live in NM)
A lot of this will depend on how good his lawyer is. I would suggest to her she talk to a lawyer before taking any steps.
It's the "smart" thing to do in some ways, since they're legally married there is no "custodial kidnapping" (UNTIL THERE IS A CUSTODY ORDER, temporary or otherwise, either parent can take the children anywhere in the world). HOWEVER, most states have a law that says you must live in a state for 6mo before you're allowed to divorce and SOME states won't let you divorce in any state but the one you were married in. And he can also file an 'emergency' (aka temporary) custody order in his own state at any time which can mean that things can get very very complicated. (AKA if he files for emergency/temporary custody before she's allowed to, then the kids "belong" to him, even though she's in another state she can be required to bring them back). In other states you *can* file for emergency custody or divorce on day 1 of living there.
ALL of this breaks down to 2 lawyers. ASAP. A lawyer in the state she lives in and a lawyer in the state she wants to move to. They'll talk to each other and figure out the details of what is legal/smart.
States have different laws about this situation; but most have laws to prevent this type of situation (one parent, without the other's permission, removing the children from the state where both parents had been raising the kids). Before your friend takes any action, she should consult a family law attorney in New Mexico. She may actually make things worse for herself in a custody battle by unilaterally removing the kids.
When I was going through my separation/divorce, I had this same question (because my ex kept threatening to take the kids to NM from Ohio and not return.) What I learned was that (at least for Ohio) while you are married, either parent can take the children anywhere they want. However, the parent that remains can file for divorce/custody in the home state and win by default because the other parent doesn't show up to court, then they can file noncustodial parent kidnapping charges on the parent who took the kids out of state. IMO, not a great idea for her to go ahead with her plan, she has a LOT to lose.
So, imagine your husband took your kids and up and left. Attorney notified you he was seeking a divorce. That's how her husband is going to feel - probably not all warm and fuzzy, let's be civil and work out the arrangements that are best for the kids. More like - I'm going to hurt you as much as possible (maybe even whether or not it hurts the kids too, depending on how much he is hurting). Sounds like a really BAD idea. Plus - how is she going to explain this to the kids. Mommy is taking you away from daddy because she would like to live near grandma and grandpa. Most kids are WAY more attached to daddy than to the grandparents.
Totally talk to a lawyer before moving. My sister did it the "right" (legal) way and got stuck in MA because of the judge's decision. She is miserable. She doesn't have any family or support system there. My nephew (her son) has been emotionally damaged because of the ping-pong visitation arrangements which has been decided for him. The two parents have completely different parenting styles and sets of values. You get the picture. SO, if she can, she should find her way to move away with the kids while she's still married, then make a SEPARATION agreement with her husband where they share legal custody of the kids BUT she has primary physical custody. Obviously she needs to "work" her husband a bit and convince him that the kids are way more stable (and away from the divorce turmoil) with her and their granparents. She also needs to grant him visitation anytime he can and be open to facilitate it. But all of this can be written in the separation agreement, which could be, in my opinion, a good start. It's a hard cookie..he needs to be convinced that this is the best for the children...good luck to her.
While they are still married there is nothing illegal about it for one spouse to take the kids to a different state. However, once divorce has been filed then it can cause problems. Once papers are filed, she cannot take them out of state without his permission. Also, if she takes them out of state in the mean time, then files, like others have said it can get complicated and nasty for the both of them if her husband decides to petition for her to move back, intentionally sets the court date so she won't be able to show up, etc. Honestly, it would be the best option for her to at least consult a family lawyer to obtain best advice on how to proceed. Ideally, she would be able to file for divorce but have an agreement where she can move the kids to the state she wants to be in with her husbands knowledge. Good luck to her!
I moved from pa to mi before filing my divorce.....my ex knew I was doing it for family support. It is legal but he can file petitions to make her come back and it will be taken before a judge. In my case in pa I had mo real fiends of family and was pregant win our third high risk baby.....I moved to mi win my two daugters into my parents home. My lawyer said even if he would have tried a judge proly wouldn't have forced me back to pa cause of the circumstances. In mi it takes 3months to establish recidency....after you establish residency he can't make her move. But to file my divorce I had to live in mi 6 months so it was over a yr after j left him before it was finally done....which sucked! I would tell her to call a lawyer in boy states and get their opinion on how to approach the move
Who knows what will transpire if/when she does this.
Of course, I would think she will not tell her Husband of her plans?
Also, if she goes on a 'trip' with her kids... (ie: her escape plan), then I would think, she better bring with her all of her and her kids': birth certificates, SSN cards, medical info, and any other vital records, her marriage certificate etc. Her financial records, account records, insurance policies etc. and scores of other papers.
Because, once the Husband finds out she is not returning nor with the kids.... he WILL.... freeze all accounts etc. and get probably VERY pissed off..... and shut her out of anything/any accounts that they have.
She will then, have no money to fund a Lawyer herself, unless she is independently wealthy and/or her parents/family are rich and powerful and have deep connections in her hometown.
And I am sure, maybe the Husband WILL file whatever charges against her... if he can and if he is a PISSED off man, and/or dangerous and abusive.
Imagine, she goes on a trip with the kids. Then suddenly just does not return home and she tells him she is divorcing him????
Any guy, would be stunned and mega pissed off. Then who knows how he will react?
Retaliatory???
This incident will also color her 'reputation' and the Hubby will use it against her.... making up all kinds of lies or what not about her and why SHE should not have custody of her kids etc.
Anyway, its a gamble.
Risky.
Who knows what the laws, will do to her? As well.
Is this man abusive?
She should be documenting everything and taking such information with her.
She really needs to research this before she takes off.
What if, she loses her kids?
it might be considerd kidnapping or abandonment. if she goes, she needs to get birth certificates, ss# cards, baby shot records.
