Moving Away with Your Child While Divorce is Pending

By: Wallin & Klarich

You and your spouse are just barely able to stand one another at times. Your son just turned 11 months old. You and your spouse have talked about getting a divorce. You have no friends in the area. You came from Oklahoma and you want to go back. Your spouse grew up here and wants to stay here. Of course, you want to take your son with you. Your spouse wants your son to stay. Your spouse files for divorce. Can you now move away to Okalahoma and take your son with you? You have heard that you could be charged with kidnapping. You have heard that is the same as child abduction. But it is your child too. No court ever told you that you can’t move and take your child with you. Thousands of parents across California face these questions and thoughts. The answers are clear and you are about to find out what they are.

Upon the filing of a petition for dissolution of marriage (divorce), the petitioner is automatically restricted from doing certain things. These restrictions are called automatic temporary restraining orders (ATROs). One of those things the parties are restricted from doing is moving away from the area with the children without the written consent of the other party. Once the other spouse (the respondent) is personally served with the petition and other filing papers, those same ATROs also apply to the respondent. This means neither parent can move away from the area without the written consent of the other party (spouse).

These ATROs are in effect against both parties “until the final judgment is entered or the petition is dismissed, or until further order of the court.” (See California Family Code § 233(a).)

Removing your child from the area without the written consent of your spouse may be a crime-child abduction. (See California Penal Code §§ 278 and 278.5.)

In order to remove your son from the area, you must first either get the written consent of your spouse, or you must get a court order allowing you to remove your son. With either approach you chose to take, you should hire a lawyer who can act fast, especially if you plan on moving away very soon.

If you are in the situation described above, or if you think your spouse is in this situation and that your spouse plans to move away with your child, call Wallin & Klarich so we can tell you how you can proceed, and how we can help you reach your goals.

Posted In: Child Custody Issues