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California child custody laws, does filing for temporary custody guarantee automatic custody

I live in San Diego, I'm taking my 2 month old son and going to Oregon to stay with my mom for a few weeks to sort out the details of seperating from my husband. I want to make sure while I'm gone my husband can't file for temporary custody and actually get it because I'm not here. My mom thought that whoever filed for temporary custody automatically got it until the custody hearing regardless of what was better for the child. I need to know before I leave.

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Attorney answers (2)

Reputation Level 7
In your question, you failed to state one very important point: has either party filed for dissolution of marriage or legal separation? If not, there is nothing which prevents you from going with the child (from a legal perspective) to Oregon.

If either party has filed, then I would recommend that you either get permission from or soon to be ex (in writing, of course) or file your own motion. While the court can make orders on an emergency basis without you being present, he would have to give you notice of the hearing. The problem could be that the notice is less than 24 hours before the hearing, severely compromising your ability to appear and defend your position.
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Reputation Level 14
If you need to know before you leave, then you need to see a Judge. If you take your child out of the state without dad's permission (and/or knowledge) absent doing so under a protective order, then you run the risk of parental kidnapping, a very serious situation. Good luck to you!

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