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FamilyAnswer, Lawyer
Category: Family Law
Satisfied Customers: 28344
Experience:  10 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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My wife and I are getting a divorce and my 16 year old son

Customer Question

My wife and I are getting a divorce and my 16 year old son wants to live with me. We currently live in Fresno California and I am moving to Florida. I am going to take him with me while we go through our divorce. He wants to live with me moving forward as well but is it ok if he leaves with me now
Submitted: 2 years ago.
Category: Family Law
Expert:  FamilyAnswer replied 2 years ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.
Good evening. Is the mother alright with this? When you filed, did the court impose any restrictions on removing the child from the State?
Customer: replied 2 years ago.
I travel for work. She had An affair and decided to move on. She filed but I have not received papers. She will not like it. There are no restrictions that I am aware of. Couldn't he just go and we both can come back for the final if necessary. Currently don't we both have equal custody.
Expert:  FamilyAnswer replied 2 years ago.
Without anything in place at this time, restricting your ability to relocate with your son, you would not be in any violation of a court order. However, there could be an issue with custodial interference and I have provided the law below, which could be at issue. Moreover, if she has filed, there may be language in the papers which advise the child is not supposed to be removed from the State and seeing the time, the Judge may find that you tried to move quickly on this to avoid service and be able to take your son. Even though your son wants to go with you a minor child never has the final say and the Judge will decide based upon what is in his best interest. After all, with you relocating out of State, the issue with child custody would need to be determined since one parent would only be entitled to visitation, seeing the distance to travel.
278.5. Deprivation of custody of child or right to visitation; punishment
(a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.
(b) Nothing contained in this section limits the court's contempt power.
(c) A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.
Customer: replied 2 years ago.
I don't and wouldn't keep him away from her. I would absolutely for the judge's final ruling but as of now he should be able to go where he wants until a final ruling shouldn't he? I'm not hiding or running from anything. I just know that he doesn't want to be without me. My new job is in Florida. Couldn't it be spending summer with dad until this is over?
Expert:  FamilyAnswer replied 2 years ago.
Everything which you say is valid BUT what is the mother going to tell the Judge when she finds out you left with him. Moreover, what happens after the summer? If the divorce is still pending, then what? To simply leave the State without telling her say you are keeping your son, could lead to problems. There is no way of know how the Judge will rule or what will be ordered but the child may need to be returned.
Customer: replied 2 years ago.
If I take him. And the judge says that I need to return him and I do. I still have not broken any laws, correct?
Expert:  FamilyAnswer replied 2 years ago.
Possible. If you review the statute above which I shared, they may have issue with the visitation and the mother not having it, since you are located in FL and she is in CA and you did this without her knowledge or consent and she has no way of visiting the child. The State may prosecute but that is at their discretion. If you take him and move, be aware that you may need to commute back, as this will be contested if the mother wants custody as well, so you also would need to retain counsel.
Expert:  FamilyAnswer replied 2 years ago.
I just wanted to follow up and see if you had any other questions or needed me to clarify something. I am here to help, so please let me know. Thanks!