If my husband and I have talked about divorce or legal separation, am I allowed to leave state with my daughter?

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If my husband and I have talked about divorce or legal separation, am I allowed to leave state with my daughter?

We have no family or friends where we currently reside because we are new and I would want to go back to home where I have help with my 3 year old and to get established.

Asked on June 18, 2015 under Family Law, Colorado

Answers:

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

Answered 6 years ago | Contributor

So long as no papers have yet been filed, then you can legally leave the state with your daughter. However, your wife could file for custody, at which point you would have to return. If you failed to do so, you could potentailly be charged with parental kidnapping. 

What you should do is you to go to court first to attempt to obtain legal custody.  If you get a temporary order from the court, a permanent order will be issued when your divorce is finalized. 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 decision.  

Note: You could file for custody once you re-establish residency in your new state (but that will take time; in most states it's around 6 months), meanwhile your wife could file first.

At this point, you should consult directly with an attorney who specializes n custody cases.


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