If not legally separated, can awife move from on state to another with her sons and then file for divorce?

My cousin had to leave her husband/house with her 2 young sons for their personal safety. The state filed charges against him for interfering with a 911 call but no physical abuse was involved.

Asked on October 22, 2011 under Family Law, Washington


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

Answered 9 years ago | Contributor

Since there is no legal separation or other applicable court order in affect, your cousin can take her children out-of-state.  However, her husband could go to court and obtain an order which will require her to return - with the children. If she doesn't comply with the order and come back, she can be charged with parental kidnapping. The best way for her to obtain legal custody is to go to court first. If she get a temporary custody order from the court (a permanent order will be issued at such time as the divorce is final). 

Of course, if she is able to establish residency in her new state (typically 6 months), then she could file there. But again, if her husband files first and before she obtains her new residency, she would have to return.

Note:  In deciding whether or not you can then move out-of-state, the court will consider "the bests interests of the children" in making its determination.  

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