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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41221
Experience:  I provide family and divorce law advice to my clients in my firm.
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I live in NM, I am from OK. I have recently found my husband

Customer Question

I live in NM, I am from OK. I have recently found my husband cheating on me. He has also been drinking and driving with our 4 year old son in the vehicle (once, that I know of, not even in his carseat). Can I take my son and go home to OK and file for divorce from there?
Submitted: 1 year ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

The answer to your question is somewhat complicated. You can indeed move out and take the child with you--until either of you file for custody, either of you can travel with the child, even across state lines. To travel out of the country you'd still need written permission from all parents. But as far as filing, you need residency rights in the state where you wish to file. For Oklahoma, that means that to use their courts you need to be present within their state for 6 months to file. The only exception is military--military families who were under orders can file within 30 days of becoming domiciled. So if you move to Oklahoma and he does not challenge the move, you'd have to wait 6 month before filing for divorce.

Sincerely,

Dimitry, Esq.

Customer: replied 1 year ago.
if he challenges the move what would happen?
Expert:  Dimitry K., Esq. replied 1 year ago.

Hi,

If he challenges, he can go to court and file a motion for emergency custody. If granted then you would be able to move out, but the child would have to remain. Likewise you can file first, attempt to obtain temporary sole custody, and use that as a basis to move out, but you'd need grounds for custody. He would have a basis because he could argue that you are engaged in parental abduction if you are trying to leave with the child and go to a different state, but unless he is abusive (physically and/or sexually), it would be tough for you to make the same claim.

Sincerely,

Dimitry, Esq.