Can she take my child out of state without my consent?

[jabm]

California

My wife and I have been separated for almost 3 years now, when we separated she stayed at my father's with my son for about 4 months until she was deployed, at which time my son lived with me. She was gone for 1 year and I was all my son knew. When she came back she left to Los Angeles to stay with her boyfriend and didn't come to visit our son until about 2months after she got back,at which time she would take him for a couple days at a time then she would bring him back, so technically,his home was with me. She then decided to go to FL to visit family and do a short-term school to which i verbally agreed to allow her to take our son to visit her family. The verbal agreement was that she will go to FL to study at a 9month school and she will move back to live here in San Diego,CA at which point we would do the divorce.She left in September and brought my son in October for a couple weeks while she visited her boyfriend then left, then again in February for a couple weeks. Now, she is no longer with her boyfriend so she decided she just wants to move to FL completely and she got herself an apartment and is attempting to settle in, can she do that without my consent? From what I understand if I submit the divorce documents she will be required to move back with our son, is this true?? I'm planning to submit the "Dissolution" papers tomorrow. I recently asked her to let my son visit since my sister is flying to FL and can fly back with him and she is refusing saying that I need to sign a paper stating that I will take him back when she never even had my consent to "move" our son to FL.

 

[Siflan]

California

My wife and I have been separated for almost 3 years now, when we separated she stayed at my father's with my son for about 4 months until she was deployed, at which time my son lived with me. She was gone for 1 year and I was all my son knew. When she came back she left to Los Angeles to stay with her boyfriend and didn't come to visit our son until about 2months after she got back,at which time she would take him for a couple days at a time then she would bring him back, so technically,his home was with me. She then decided to go to FL to visit family and do a short-term school to which i verbally agreed to allow her to take our son to visit her family. The verbal agreement was that she will go to FL to study at a 9month school and she will move back to live here in San Diego,CA at which point we would do the divorce.She left in September and brought my son in October for a couple weeks while she visited her boyfriend then left, then again in February for a couple weeks. Now, she is no longer with her boyfriend so she decided she just wants to move to FL completely and she got herself an apartment and is attempting to settle in, can she do that without my consent? From what I understand if I submit the divorce documents she will be required to move back with our son, is this true?? I'm planning to submit the "Dissolution" papers tomorrow. I recently asked her to let my son visit since my sister is flying to FL and can fly back with him and she is refusing saying that I need to sign a paper stating that I will take him back when she never even had my consent to "move" our son to FL.

So.... Are there any court orders in place as of yet that stipulate custody or visitation? Or just verbal accommodations?

 

[Ohiogal]

California doesn't have jurisdiction over child custody at this juncture UNLESS there were already court orders in place regarding custody. If not, Florida has jurisdiction over child custody and support.

 

[ecmst12]

Of course she had your consent to move him to FL, how else did they get there? You allowed it.

 

[LdiJ]

California

My wife and I have been separated for almost 3 years now, when we separated she stayed at my father's with my son for about 4 months until she was deployed, at which time my son lived with me. She was gone for 1 year and I was all my son knew. When she came back she left to Los Angeles to stay with her boyfriend and didn't come to visit our son until about 2months after she got back,at which time she would take him for a couple days at a time then she would bring him back, so technically,his home was with me. She then decided to go to FL to visit family and do a short-term school to which i verbally agreed to allow her to take our son to visit her family. The verbal agreement was that she will go to FL to study at a 9month school and she will move back to live here in San Diego,CA at which point we would do the divorce.She left in September and brought my son in October for a couple weeks while she visited her boyfriend then left, then again in February for a couple weeks. Now, she is no longer with her boyfriend so she decided she just wants to move to FL completely and she got herself an apartment and is attempting to settle in, can she do that without my consent? From what I understand if I submit the divorce documents she will be required to move back with our son, is this true?? I'm planning to submit the "Dissolution" papers tomorrow. I recently asked her to let my son visit since my sister is flying to FL and can fly back with him and she is refusing saying that I need to sign a paper stating that I will take him back when she never even had my consent to "move" our son to FL.

You have a potential problem here. Your son has lived in FL long enough for residency to be established,(more than six months, its apparently been 10) and there apparently were no previous court cases in CA to establish jurisdiction there. On top of that mom has established status quo as primary caretaker. You can file for divorce in CA but it appears that CA would not have jurisdiction to decide custody matters regarding your son.

Now...if there were previous court orders regarding your son's custody, then CA would retain jurisdiction, but mom still has the status quo of her and the child being FL residents. It doesn't look like she could be required to move back to CA with the child.

 

[jabm]

What if I didnt consent to her living there? I was ok with her taking him yo visit with the idea that she would be coming back but she suddenly changed her mind! We did not go through court yet because we agreed to handle that as soon as she moved back so theres no court orders on anything yet!

 

[Zigner]

What if I didnt consent to her living there? I was ok with her taking him yo visit with the idea that she would be coming back but she suddenly changed her mind! We did not go through court yet because we agreed to handle that as soon as she moved back so theres no court orders on anything yet!

Not that it matter...but you DID consent to her living there...for 9 months. That allowed residency to be established.

 

[ecmst12]

A visit is a few days, maybe a week or 2. Your child has been LIVING with mom in Florida for almost a year, and you consented to it all this time. It doesn't matter that mom had been considering moving back to CA and has now changed her mind. Because you consented to them staying there for so long, CA can no longer claim jurisdiction over the child so you will have to file in Florida.

 

[CJane]

Not that it matter...but you DID consent to her living there...for 9 months. That allowed residency to be established.

Exactly.

And Dad? Ignorance of the implications isn't a defense here. Mom moved almost a year ago. You were fine with it -- or at least did not file in court to prevent her from doing so -- and now she's decided not to move back to CA. *shrug* That's how it works.

 

[jabm]

I'm not trying to take custody away, I just want to be able to see my son and she won't allow it, so I'm basically seeking visitation rights. My next question is then, once she is served with the divorce docs, can she file her response through mail since she is FL or will she have to come out her to file it?

 

[ecmst12]

You need to file in FLORIDA.

 

[jabm]

For the divorce???

 

[ecmst12]

Well, your main concern is visitation, and IMO it's much easier to have one court case instead of 2, so yes, file for everything in Florida.

 

[LdiJ]

For the divorce???

You can file for the divorce in either state. You can only file for matters regarding the child in FL. Therefore, its more practical to file for the whole thing in FL. However you certainly can file for the divorce in CA and then file a second case in FL for custody/visitation etc.

 

[Ohiogal]

IF he filed in California and she did not dispute jurisdiction, she would be consenting to jurisdiction. If she disputes jurisdiction it would then go to Florida.