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I filed for divorce recently. I have asked for joint custody. Can he say I abandon the kids if I leave the state for a month?

San Jose, CA |

I am planning to move out next week. My husband will be served with the divorce papers the day I leave. I have no job and a sick male friend (only a friend) offered to let me stay with him for a month or two, but he lives out of state. My husband says that that is abandonment. My plan which I discussed with my kids who are 11 and 15, and tried to discuss with my husband, is to stay with that friend, help the friend pack up, look for an apartment where my kids live and be room mates with the friend so I can look for a job and help support my kids. I have been a stay at home mom and housewife for the last 11 years. Please help. I don't want to lose my kids.

Attorney Answers 3


I would not recommend leaving the state during this stage of your divorce proceedings. Not only will it likely emotionally affect your children, it is not the wisest move legally speaking.

The solution to your problem about finances is to file what is called a Request for Orders for child support and spousal support (or alimony), and attorney's fees so that you can retain competent legal counsel to assist you through this process.

If you have been a stay at home mom and housewife for the last 11 years, that is a very good fact in your favor--not only does that tell me that you likely have what is known as a "long term marriage" but that means that you were also likely the primary caretaker for the children.

Since child support is largely a function of the amount of time each parent spends with the children as well as the relative income of the parties, these are also good facts in your favor.

It seems to me that you need to begin educating yourself about the process, and most definitely speak to an experienced family law attorney who can guide you through the process to ensure you don't make an "mistakes" such as moving out of state (even temporarily)! :)

I have included links below which addresses some of the common questions and answers which often come up in divorce proceedings. Good luck.

If you found this answer helpful, let me know by clicking the "Mark as Helpful" button or "Best Answer" at the bottom of this answer. By answering this question, the Law Offices of Cathleen E. Norton does not intend to form an attorney-client relationship with the asking party. The answers posted on this website should not be construed as legal advice. The Law Offices of Cathleen E. Norton does not make any representations about your family law matter, but rather, seeks to provide general information to the public about family-law related matters. You should consult with an attorney to discuss the specific facts of your case. Thank you.

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While it is certainly not "abandonment" if you follow through with your plan, it will leave the kids in their father's custody. Getting them to move out of state after the fact may prove to be more difficult that it is worth.

You should consider finding a different roommate candidate, one who is in the area. Then you have have joint custody, instead of leaving the children solely with their dad. You can also file a Request for Orders seeking child and spousal support -- and some help with legal fees, to boot.

The opening moves in a divorce often set the tone for the case that follows. Make sure that you have a plan and get some specific, personalized legal advice from an experienced, local Family Law attorney before committing to what could turn out to be a mistake of a plan.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

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I really believe it would be far preferable if you filed a motion for temporary child and spousal support and a request for permission to move with the children and get the court approval first. If you move, then go back a month later, you may not get into court for several months and after the long passage of time, the court will probably not want the children to be uprooted from their present school and also friends, local activities, and present status of life. I believe you need to rethink your approach, otherwise, what you don’t want to happen may be out of your control at that point in time.

This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

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