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Thank you for your question and I look forward to working on your answer. Also, it is important to know that I can only respond to your post and the information contained in it, as I do not know what you know, unless you describe it fully. Also, because you are at this site, you are asking me the question because you want the legal facts, as I see them, even if unfavorable to your situation from a legal perspective. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if I ask a redundant question.
That being said, if you would like me to work on an answer for you, and in order to better assist you, could you please clarify for me, in numbered answers if I ask more than one question:
1. Are you asking if you can move out with the kids, pending divorce.
I look forward to getting to work on this for you. Hang in there!
S. Joy, Legal Expert
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Hello again, and thanks for your patience. And don't apologize! I know this is a very trying and troublesome time for you.
With regard to your posted specific questions:
1) Yes, Can I move out with kids pending divorce? Yes, as could he. You both have equal rights here until the court establishes custody.
2) He says if I leave he will bring me up in court for being unfit mother and abandonment? This would not fly based solely on you leaving, either with or without your children. Unfit means abusive, neglectful, NOT if you leave your children at home with the other 'fit' parent. People separate and often it is better for the kids for one to move out, rather than have drama in front of the children.
To prevent a traumatic experience for kids I have considered moving out until I can do something legally to get my kids. You absolutely can - and you can actually take them with you. But, it is also possible that when you do and he comes to visit or get them for a night or two, he won't return them - when there is no court order, that is what happens. This is why I recommend an Emergent Motion for Temporary Custody pending final hearing.
3) He is trying to force me to stay by holding the kids over my head. Needing peace that if I leave I can legally be quickly reconciled with kids. Absolutely. Consider leaving with them if you have an appropriate place for you all to live (# XXXXX bedrooms, nice neighborhood, etc.), and just as you are leaving, having him served with papers you have already filed in court for Emergent Temporary Custody, Divorce, etc. If you have been the caretaker (primary) thus far in their lives, there is a good chance you will be the custodian.
4) I am not romantically involved, but do have feelings for someone else and my husband knows that so can that be held over my head where my kids are concerned? No, but I'd quit sharing with him the subjective breaking of the vows, and refrain from considering adultery at this time. If the other individual is worth it, that individual will be more than happy to wait.
Im scared. I know, kids complicated the split, so much.
Thank you for your help...I can't live like this anymore. Please feel free to follow up here, I know it is more complicated than it seems.
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First, unless your texts indicated adultery, it will likely not be a problem. Moreover, your husband would have to generally sue on grounds of adultery and prove the adultery specifically. He likely can't do that if it didn't happen.
Moreover, adultery generally does not equate with that parent then not being "in the best interests" of the child" - rather, it is who has the better home life for that child. While adultery may not have a direct effect on the custody decision, it may play an indirect role if, say, you were spending inordinate amount of time by choice, with the other person, which took away from reasonable time with the child, or, if sexual engagements were happening in the home, while the child was home - things like that. I doubt you will have a problem - and how is he to prove what was in your texts? He will likely be breaking laws by intercepting your texts on your cell phone, using your personal identity information to hack in, etc.
It is never easy when we have our custody of our kids at risk, but you do need to make a happier life for yourself too. Consider being willing to go 50/50 joint custody, if practicable, but get the details nailed down as to dates, holidays, times, exceptions, etc., working in the extra curriculars so as not to have the kids' lives suffer as a result. Consider fighting for physical custody while being willing, in reality, to settle for 50/50.
Also, keep in mind too that if you do leave with out the kids and they are de facto then in dad' s custody, and a year goes by, that will become the new statuts quo, which is one more nail in the best interests of the child being in you, because courts like stability so long as it is working favorably for the kids.
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