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Barrister
Barrister, Lawyer
Category: Family Law
Satisfied Customers: 37884
Experience:  Attorney with 16 years experience
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My girlfriend is married and she doesn't think her husband

Customer Question

My girlfriend is married and she doesn't think her husband would sign a divorce paper but they aren't living together and they haven't technically been together for a couple years but they're still legally married and she has 2 kids, for one her husband is the father but he is not on the birth certificate so their daughter isn't legally his and for their son she believes there's a possibility that he isn't his father and she may do a DNA test with the other possible match. What would be the repercussions of moving to a different state? What can her legal husband do and not do to stop her or sue her for anything?
Submitted: 2 years ago via USmarriagelaws.
Category: Family Law
Expert:  Barrister replied 2 years ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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If there is no custody order in place from the court preventing a move, then there is nothing that would keep her from being able to legally move with the children. If they are married, then if both children were born during the marriage, then the presumption is that he is the father, whether he is on the birth certificate or not.

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The only way he could stop her from moving would be to file for divorce and then seek an emergency injunction preventing her from moving pending the outcome of a court ordered DNA test. If he is determined to be the bio father of one or both of the children, then he can get a custody order from the court giving him custodial time.

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But if she were to move without giving him any notice, then it would be hard for him to get the injunction since he wouldn't be aware of the move. He would then have to file the divorce and paternity action to get a custodial order (if he is the bio dad) to establish any custodial rights.

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However, in order to prevent him filing a complaint for "parental kidnapping" she would want to notify him of where she is living once she moves so he can't say that she is hiding his children from him.

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thanks

Barrister

Customer: replied 2 years ago.
They currently don't have anything set in place through the court. So what actions would she have to take to be able to move to a different state; she currently lives in California and the plan is to move here with me in Nebraska. Without having any major backlash from her legal husband and the courts?
Expert:  Barrister replied 2 years ago.

She doesn't have to take any actions, she can just move. There is nothing preventing her from doing so since they both have exactly equal custodial rights to the children. So whoever has them has the legal right to do so. However, until she lives in Nebraska for 12 months to establish residency, if husband filed for divorce and custody, she would have to return to CA for any court hearings because that would still be her legal state of residency until she hits that 12 month limit.

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If he didn't file for divorce and custody within 12 months of her moving, then she could file in NE and fix the jurisdiction there for the case and he would have to travel there to any court hearings.

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But CA has much higher child support awards than NE, so it would be in his favor if he waited to allow her to file in NE as any child support payments would be much lower.

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thanks

Barrister