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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S. Joy, Legal Expert
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