Can I move my kids out of state if I’m seperating from my husband?

I like in AZ but mine and my children’s home state is CA; we had to move for my husband’s job. I want to leave my husband and move back home but he told me that I can’t take the children. I cannot live in AZ and will be moving in with family until I can get us back on our feet. Can I legally leave and take my kids? I know I have to wait 6 months before I can file for divorce but I really need to get out now.

Asked on March 26, 2017 under Family Law, Arizona


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

If there is no court order now in effect, than you you can take your children out-of-state. However, your husband can go to court and obtain an order which will require you to retur. If you don't return with the children, you can be charged with parental kidnapping.
The best way to obtain legal custody of the children is for you to go to court first. Taking them to live in another state is not a good idea insofar as a custody battle is concerned. What you want to do is get a temporary order from the court on custody and visitation (it will be temporary because a final decree will be issued upon divorce). The court will consider the bests interests of the children in making its determination and will look at such factors as: the ages of your children, the relationship of both you and your husband with your children, the present living situation of the child, etc. 
Note: You could file for custody once you re-establish residency in your new state but that will take time and in the meanwhile, your husband could file and as stated above, so you could be required at that point to return.
Right now, you need to consult with a local attorney in AZ; they can best advise you further.

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