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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
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Experience:  Attorney experienced in all aspects of family law
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My daughters marriage of 9 years is on the brinks of divorce.

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My daughter's marriage of 9 years is on the brinks of divorce. She is bipolar and her medication was not working. She was out of control. She recently spent over 30 days in the hospital and the new medications are working very well. Before she went to the hospital she was threatened with divorce unless she admitted herself which she did. Her husband told my daughter that he would go to counselling and Retrouvaille when she was released and he has backed out on this. He did go one time to counselling and then gave up. They have 4 children 2 children from his first marriage and then my daughter and he had 2 more. Her husband asked me if she could stay with me when she gets out of the hospital because he thought she needed some time before returning home. So I agreed and she has been living with me since her release.
He now will not let her return to their home and says if she comes home he will move out and take the 4 boys. However she takes care of the children while he works and she does all the cooking, shopping etc and spends most of her days at the house and her mail comes to their house. I suggested to her husband that she go home and sleep in the guest bedroom which is downstairs. I already told you his answer he will move out if she lives there.
I have several questions.
What are her rights in this situation?
If she does not live in their house would that be considered as legal separation / abandonment?
Can he move out and take the children?
Financially he can't afford to move out, pay the mortgage plus all the bills.
Do you have any suggestions given that she wants to stay married in hopes of reconciling; however she wants to protect her assets(1) her house which has lost too much value(underwater)
2. Her husband is creating a "child visitation schedule which makes her feel like she is already separated.
My daughter has been living with me for 23 days.
Can he keep her out of the house?
Can he make a "child visitation schedule " they are still married.
Hello there:

there were multiple questions in there, so I will try to address them all in the order presented. If I miss anything or if more detail is needed, just let me know.

1. "If she does not live in their house would that be considered as legal separation / abandonment?"

A. California is a no-fault divorce state, meaning that things like "abandonment" are mostly irrelevant to a party's property, custody, or support rights. However, for purposes of divorce or legal separation, the date of actual separation may impact their rights. The date of actual separation is different from the date of physical separation (although, they often coincide). Actual separation is when it is decided and communicated by one of the parties that the marriage has irretrievably broken down.

2. "Can he move out and take the children? "

A. Without a custody order in place, either parent of children can generally "move out" with the children, provided the other parent is not denied reasonable visitation with the children.

3. "Can he keep her out of the house?"

A. 99.9% of the time, the answer is going to be no in these situations; although you have given me no reason to believe that she falls under the 0.1% where the answer is "yes", I would need to do a full interview with her to say for absolute certainty. I hope that you understand.

4. "Can he make a "child visitation schedule " they are still married."

A. technically, the answer is "yes", but she can make one, you can make one, and a monkey with a pencil could probably make one. The point is that the schedule is not legally enforceable except by court order, which has not happened.

It is really important that a parent not be pushed around with regard to visitation earn on when problems arise; even though there is not a court order in place initially, it can set a precedent which the court will rely on when it does eventually get before the court. In other words, limited visitation without a court's order today can lead to limited visitation without a court's order tomorrow.

The court can order custody without starting a legal separation or divorce. I do not want any marriage to break down, but it is important that your daughter's rights be protected unless and until they can make their relationship functional again. Whether she gets an attorney or files for custody on her own, she needs to be proactive to protect her long-term rights.

I hope that this helps.
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