Family Law Questions? Ask a Family Lawyer Online.
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Who were the kids awarded to in the divorce?
Thank you. The reason his attorney is likely saying this, because if you have lived there for more then 6 months, it can be argued that is the home state of the child and there is established residency. Absent a court order or agreement, you have just as much right to the child as the father, since the child was from the marriage. In a situation like this, if he previously allowed you to relocate out of State and then you moved back and established residency, he may try and argue what he is now, that the previous consent is no longer in effect.If your attorney has advised to not move back yet, it is because they do not want him to claim custodial interference and that you are taking away and interfering with his legal rights as a father. Moreover, if you filed for divorce there and the court has jurisdiction, I am inclined to believe there is something which prevents parties from relocating without permission as well.
If you move, he will likely proceed through the court and try and get a court order, to force you to return with the child. As far as kidnapping, that is a criminal act and the State would need to get involved but without anything in effect, as a court order, the State may not prosecute since it would appear to be a civil issue between parents.
You can rely on the previous permission given and argue that you acted in good faith to try and make it work but it could not. He is going to claim you came back and establish residency there and can not just move again but the Judge will decide. It could take a few months, unless his attorney is able to get an emergency hearing on it
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It depends on the court. It may be something that could be heard in a week or two and they would have to place you on notice of it. Since there is a pending divorce, they could proceed in that manner.
That means to send you notice of the hearing, once it is set. Typically, this is done though the mail, unless the try and have it heard ex parte and advise the Judge of the facts, since there is no time to notice you, if they can show harm to the child and immediate action is needed.
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