Legal Question in Family Law in New York

Re: who stays who goes

If you choose to file for divorce you can get a temporary order awarding you exclusive use and possession of the marital home. If you wife returns from Australia, there is no presumption that the home is hers, but beware that she could simply file for a restraining order and claim that you abused or threatened her. It will come down to your word against hers and you will not be granted any time to consult with an attorney. The standard of proof for these restraining orders is VERY LOW (in some cases, merely stating that you are afraid of someone is enough to get a restraining order) and most courts are concerned about what could possibly happen if they do not grant one, so they are granted in just about 100% of the cases I have seen over more than a decade. If that happens, you will be kicked out of your house and not allowed to see your children. If she is already making threats, then protect yourself; go see a Divorce Attorney and protect yourself and your children.

Re: who stays who goes

Since she has vacated the house, you should immediately file for custody of your 13 yr old. You can do this in Family court in the county in which you live. You can do this even without filing for divorce first.

The court will not remove you from the home when you have full custody of the child who lives there.

She will not be able to gain cutody, because the court will view her leaving the children w/ you as evidence of your fitness to care for them. She can't say your unfit if she left the kids in your care as that would be child neglect on her part.

Do not move out of the house no matter what and if she returns and starts trouble (fighting, screaming, harrassing) YOU get an order of protection to have HER stay away.