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Can I take my children out-of-state away from their father in anticipation of a separation?

Question Details:I have 3 children all of whom were born in NJ. I want to move back to California after my husband and I separate. I have all of my family and friends in California and need a support system in order to raise these kids.We met and were married in California. The only people that i have in NJ are my husbands family and friends. Can I legally take my children home and how do I go about making it a legal transition.

Asked 2 years ago under Divorce, Marriage, Alimony | 1596 Views | More Legal Topics

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M.D., Member, California and New York Bar | FreeAdvice Contributing Attorney Answered 2 years ago

If there is no court order in effect, than you you can take your children out-of-state.  However, your husband can go to court in NJ and obtain an order which will require you to return to the state.  If at that point you don't return or return but again leave with the children, you can be charged with parental kidnapping.

The best way for you to obtain legal custody of the children is for you to go to court first.  Taking a child from their home and where they were born to take them to live in another state is not a good idea for you legally; either now or in the long run, insofar as a custody battle is concerned.  What you want to do is get a temporary order from the court on custody and visitation.  It will be temporary because a final decree will be issued upon divorce.  The court will consider the bests interests of the children in making its determination. The court will look at the age of your child, the relationship of the parents and the child, the present living situation of the child, etc. 

Note:  You could file for custody once you re-establish residency in California (but that will take time).  In the meantime, your husband could file in NJ.  However, as stated above, you could be required at that point to return to NJ.

Right now, you need to consult with an attorney in NJ (even if you later decide to file in CA).  See what they advise as to how best to pursue all of this.

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