My husband and I are not divorced. Can I take our kids and move out of state?
2 Answers from Attorneys
Not if the divorce is on file. Automatic restraining orders are on the Family Law Summons, that take effect against the petitioner as soon as it is filed, and the respondent as soon as they are served. If there is no divorce on file, then yes you can, but California will have jurisdiction over the children for six months after you leave, and has the authority, which the courts usually exercise, to order you to return the children to California, and that order will be enforced in every state and most countries you could take them to. In addition, that is viewed by the courts as an important indication that you will not foster a good, regular and ongoing relationship with your husband, which is favorable to him getting primary custody. So taking the kids and leaving the state pretty much always backfires, unless an objective judge would see that there was some reason you could not possibly stay in the state long enough to file for divorce, and then conduct an orderly legal proceeding for a court order lifting the restraining order to allow you to move the children out of state.
You run the risk of being served with court orders to return the children to California if you do not get your own court orders allowing the children to move.
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