Can a mother take her child without the father’s consent when leaving him?

UPDATED: Aug 24, 2011

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Can a mother take her child without the father’s consent when leaving him?

I am 17 and have been married for 1 year. My husband and I want to get a divorce. I am currently still living with him in his parent’s house. I am afraid to leave because he says that if I leave he will call the cops if I take our child. He wants to keep him but so do I? Can I leave and take my daughter? If I can leave, can he come to the place where I’m am staying at and take my child away from me?

Asked on August 24, 2011 California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

I am so sorry for your situation.  I can understand how nervous and concerned you must be.  In California, custody issues are generally decided in the midst of divorce proceedings.  Parents can only file for temporary custody if there is immediate or imminent harm to the child and there is a ton of proof needed for that.  You can your spouse have the same rights to your child and the same obligations.  I doubt that the police would take your child from you if you left the house with him or her (do not leave the city or the state) but I have no doubt that he will call them.  Is it possible for you to go and seek help from legal aid and file for divorce and temporary custody of your child asap?  That may be the best course of action.  Good luck.  

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