If I file for divorce and leave the marital home, can I take my child with me or does the child have to remain in the residence with the mother?
Are there legal consequences?
First let me preface my answer by stating that I am not licensed in your state. Cordell & Cordell has divorce lawyers located nationwide that would be happy to discuss your case with you.
Every state has different statutes and rules with regard to the children and how a divorce will affect their living arrangements. Some states have no rules or statutes and the court does not become involved with the children until after a parent has already left with the children or has refused to allow the other spouse to see the children.
Generally, a person is not awarded custody of their child simply because they filed for divorce while the child was in his or her care. Courts do not impose such automatic determinations of custody; that kind of black-and-white rule would only encourage child abductions by parents. Instead, courts take into account a wide variety of evidence when determining custody, with the decision resting on what is in the best interest of the child.
Since you are married, you and your wife have equal rights to your child. In most jurisdictions, the police will not get involved in any disputes regarding the placement of your child unless there is a court order.
Since the divorce has been filed, you or your wife can ask the court to set temporary custody, placement and support while the divorce is pending. Courts generally prefer to maintain the status quo. You may need to act quickly however because it could take weeks before a temporary order hearing may be heard.
In the meantime, you should make sure you are preparing for a custody case. You should keep a journal which details your interactions with your child. The journal should be handwritten and you should make notes each day.
You should also consider what third party evidence you have that exhibits it is in your child’s best interest that you have primary placement or shared equal placement of your child. Keep in mind others who observe your interactions with your child including daycare providers, coaches, etc. Also be mindful that your wife may be doing the exact same thing.
You should consult with an attorney in your jurisdiction before you ever leave with the children (unless there is an emergency) or you leave the home in which the children normally reside.
The decisions that you make at the beginning of the divorce process can affect the entire process and can affect the perception that the judge has of you as a parent. That is why the advice of an attorney licensed in your jurisdiction is always recommended.
Jason Bowman is an attorney in the Louisville, Kentucky, office of Cordell & Cordell. He is licensed in the states of Kentucky and Texas. He received his Bachelor of Science in Business from the University of Louisville, and received his Juris Doctor from Texas Wesleyan University.