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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 12732
Experience:  B.A.; M.B.A.; J.D.
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I have a question about custody. My wife and 2 young children

Resolved Question:

I have a question about custody. My wife and 2 young children (a 4 years old and an 8 month old) moved to Arizona about 3 months ago with the original intent of me moving out there with them at the end of the summer. Now, my wife is considering us separated from and is contemplating divorce. Currently I am trying to work it out with her but have stated to her that I have no intention of moving to Arizona if I cannot reconcile. Should I do something about the custody of my children before she establises residancy there (I am assuming it takes 6 months in Arizona)? Also, My wife has been talking about "working it out in therapy" however I just found out evidence today that she may not be taking it seriously. Is there some sort of waiver that I can have her sign to not allow her to establish residancy in Arizona with the kids. Please any advice would be appreciated.
Submitted: 1 year ago.
Category: Family Law
Expert:  Phillips Esq. replied 1 year ago.

Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.



I
have a question about custody. My wife and 2 young children (a 4 years old and
an 8 month old) moved to Arizona about 3 months ago with the original intent of
me moving out there with them at the end of the summer. Now, my wife is
considering us separated from and is contemplating divorce. Currently I am
trying to work it out with her but have stated to her that I have no intention
of moving to Arizona if I cannot reconcile. Should I do something about the
custody of my children before she establises residancy there (I am assuming it
takes 6 months in Arizona)?



 



 



Response 1: At this time, both of you have equal
custody of the children. If you manage to get the children from Arizona back to
Illinois, you can keep the children until the Court decides. If your marriage
is irretrievably broken and you are still in Illinois, you have to be living
separate and apart for more than two years in order to file for divorce in
Illinois and then file Motion for custody of your children.



 



 



Also,
My wife has been talking about "working it out in therapy" however I
just found out evidence today that she may not be taking it seriously. Is there
some sort of waiver that I can have her sign to not allow her to establish residancy
in Arizona with the kids. Please any advice would be appreciated.



 



 



Response 2: Unfortunately, you cannot ask to sign
something to waive residency with the children in Arizona. If she stays in
Arizona for 90 days, she can file for divorce there for irretrievable breakdown
of the marriage. See Title 25, Sections 25-312, 25-316, and
25-329:



 



 



 



http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/00312.htm&Title=25&DocType=ARS



 



 



 



http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/00329.htm&Title=25&DocType=ARS



 



 



 



 



http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/00316.htm&Title=25&DocType=ARS



 



 



 



 



Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 12732
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and 14 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.


A few follow up questions:


 


Why do I have to wait 2 years but she can file for divorce after only 90 days? I was under the assumotion that the person who files first can use his/or her states laws as the grounds for any legal proceedings.


 


Is residancy only established after she has her own place in Arizona (she has been staying at her mothers but she is looking to get a place this weekend)? She has an IL Drivers licence, the car is still registered in IL, and she did start a new job about 6 weeks ago in Arizona.


 


 


What would be the best course of action legally so I can be with my children? I dont want to have to travel 1800 miles just to see them for a few days at a time. It was my assumption that untill my wife established residancy, they boys are still residents of Illinois and thus I have the higher legal claim to them. My wife has started denying me access to them on the phone and I fear it will get worse.


 

Expert:  Phillips Esq. replied 1 year ago.





A
few follow up questions:






 







Why
do I have to wait 2 years but she can file for divorce after only 90 days? I
was under the assumotion that the person who files first can use his/or her
states laws as the grounds for any legal proceedings.



 



 



 



Response 1: Different states, different laws. There is no
requirement to wait for two years after irretrievable breakdown of marriage in
order to file for divorce in Arizona. However, this is a requirement in
Illinois. If you file for divorce in Illinois, you have to comply with Illinois
divorce laws. If she files for divorce in Arizona, she has to comply with Arizona
divorce laws. If you file for divorce in Arizona, you have to comply with Arizona
divorce laws.








 







Is
residancy only established after she has her own place in Arizona (she
has been staying at her mothers but she is looking to get a place this
weekend)? She has an IL Drivers licence, the car is still registered in IL, and
she did start a new job about 6 weeks ago in Arizona.



 



 



Response 2: No. She started to accrue residency when she
moved to Arizona with the children regardless of where she is staying.



 



 



 







 







 







What
would be the best course of action legally so I can be with my children? I dont
want to have to travel 1800 miles just to see them for a few days at a time. It
was my assumption that untill my wife established residancy, they boys are
still residents of Illinois and thus I have the higher legal claim to them. My
wife has started denying me access to them on the phone and I fear it will get
worse.



 



 



Response 3: As stated previously, divorce is not a
solution at this point if you want to file for divorce in Illinois because you
do not meet the requirements to file for divorce in Illinois under
irretrievable breakdown of the marriage. However, you can file for
divorce in Arizona and then file Motion for Temporary Custody of the children
if your wife has resided in Arizona for 90 days. At this time, both of you have
equal custody of the children until the Court decides custody. You can go and
pick up the children if you can and if your spouse does not put up a fight. If she does, and the
Police is called, the Police cannot do anything except tell you to take your
matter to the Court.



 



 



 



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