Pendete Lite Order in place – Wife abandoning marital residence and moving without my permission. Can she do that?

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Pendete Lite Order in place – Wife abandoning marital residence and moving without my permission. Can she do that?

I am a dad to 2 young sons. We live a block away from each other. The Pendente Lite order states joint legal custody with her as primary physical custody. I have overnight Wed visitations and every other weekend (but see them everyday). She notified me a month ago in writing that she is moving 2.5 hours away (She has not notified the court). I do not agree to this move and my lawyer has notified her of that. Earliest we can get a court date to modify the Pendete LIte is Sep. That’s too late.worried once school starts courts won’t move them back! She’s abandoning the marital residence too.

Asked on June 22, 2009 under Family Law, Virginia

Answers:

S.J.H., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

I am not a Virginia attorney and the procedures in each state are different but it seems to me that if her move is going to deprive you of the agreed upon visitation which is every Wednesday and every other weekend, then you have grounds to file an immediate motion for contempt and seek that she not be able to move pending a court determination. If her move does not necessarily prevent you from seeing the children, but make it more difficult, this may not be as viable a scenario. However, courts frown upon a deviation from their order especially during the pendency of a divorce action. I would sit down with your attorney and discuss you options and see  if you can get an emergency hearing or even a conference call with the Judge. Again, I am a New York attorney and things are different in every State. While it seems puzzling to me that September is the earliest a court would hear this, I am not familiar with the procedures there.  However, a modification of a pendente lite and a violation are different issues and are usually treated differently.    

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

She can do it, but I think it's a huge mistake on her part.  In some states it would be illegal.  She certainly won't be able to get a court order about the children in her new state, and the divorce court might order her to return the children to Virginia.  Whatever the details of the law in your state -- and in some respects, there are differences from one state to another -- I very much doubt that the judge will look kindly on this.  She has the right to live wherever she wants -- but where she takes the children is another matter entirely.

You need to talk to your lawyer about how hard you are willing to fight against this; if you haven't already, you need to talk through what your choices are, and the pro's and con's of each option.  If you lose confidence in your attorney -- and this is a last resort, in my opinion -- you should get a new lawyer.  One place to look for a new attorney, if it comes to that, is our website, http://attorneypages.com


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