If you file for divorce and request custody, once you have her served there is an automatic restraining order issued preventing her from removing the baby.
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.
While filing a Petition for a divorce and having it served on wife does make the automatic restraining order effective as to wife's removal of the child, it only prohibits wife from removing the child from the State of California, not from removing the child from the home. Under this scenario, husband should consider bringing an Order to Show Cause ("OSC") before the court seeking a custody order of the child, which will then be enforcable by the police. Time is of the essence as it would be unwise to allow wife to keep the child away from husband for a long period of time.
Yes, she's free to go where she likes. But if you filed a petition for dissolution, that would automatically impose court orders on both of you not sell property, change insurance, etc. (please see the Summons below) and would prevent her from leaving the state with your child. You may not have a choice about a dissolution, based on what you've written she plans to dp.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.