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Can Your Wife Leave Home with the Children?

Posted by Mariya Furman | Dec 17, 2022

During a marriage breakup, it's common for one spouse to move out of the marital home with the children. Sometimes this occurs with the other spouse's approval, but there are situations where the moving spouse decided to take the kids and leave without consent.

However, that spouse doesn't typically know their actions could impact the California family court's decisions on child custody and visitation orders. All courts have the same primary principle: the children's best interest.

This means the decision to move with the minor children will not usually be viewed favorably by a judge, especially without the consent or knowledge of the other parent.

In most cases, a family court would prefer that the kids remain in the marital home and stay in their school, giving them some stability during a difficult period.

Can Your Wife Leave Home with the Children?
Just moving the kids out of the home without consent could impact child custody decisions.

If a parent suddenly decides to remove them, it can cause them severe emotional turmoil and not be deemed in their best interest.

Parents need to remember that in the eyes of the law and the courts, it's not about you and what you want. It's all about the well-being of the children. If you intentionally disrupt their life unnecessarily, you will be held accountable.

Suppose a parent decides to move away with their minor children. In that case, the other parent can seek relief in family court, such as an emergency procedure for a temporary restraining order (TRO) in child custody cases.

A TRO is typically used to maintain the same circumstances while the issues are worked out. They are common in California divorce cases because it often prevents any long-term effects on a parent-child relationship.

If you don't seek court relief, it could take months to get a decision on child custody issues.  Also, if you don't seek legal action, it gives the appearance of consent.

During this time, your children could have already adjusted to their new home and school, and the court may not want to disrupt their life again. Our California divorce and family law attorneys will review this topic in more detail below.

What Should a Father Do?

Fathers have asked us if their wives can just take the kids and leave. Can she legally do that? What can be done to stop her? What if she grabs the kids and leaves? Does she need your permission?

The simple answer is that she can't just leave home with the kids for any extended period unless there are domestic violence issues.

Remember that the mother does not have more legal rights to the children under California law than the father unless the family court approves a divorce or custody agreement.

Married couples share joint-legal custody of the children even if the wife decides to move out of the marital home.  Thus, some potential solutions are discussed below:

  • Negotiate an agreement with your spouse by getting a lawyer to communicate with your wife's attorney. This child visitation agreement should include equal parenting time;
  • Create a child visitation schedule to spend time with your kids, which the family court will closely review during the divorce process. This includes quality time and not just dropping them off with a babysitter;
  • Protect your legal rights as a father, as you could lose them if you don't take legal action after your wife takes the children and leaves. Act fast once it happens by contacting a family law lawyer for help.

A father that immediately files for custody orders in a family court, including an emergency temporary restraining order (TRO) after their wife leaves with the kids, is sending a strong message that their wife's behavior was not agreed upon and possibly not in their best interest. Silence is deemed as consent.

If you have a child visitation schedule with your spouse, don't miss any visits with your kids, as it could matter to the judge when making custody decisions. Be on time and stay engaged with them, not work or your cell phone.

What Are a Father's Rights?

As a father to your children, you have the same legal rights as your wife during the divorce process unless there are issues of abuse, domestic violence, drug or alcohol addiction, or sexual–related issues. These rights include the following:

  • An ongoing relationship with your children;
  • Sharing joint custody with the kids;
  • Making important parenting decisions;
  • Financial support obligations.

Put simply, you can't be legally kept from spending time with your kids. If your wife doesn't allow it, you must take legal action immediately by filing a motion with the family court.

You have the right to be present at all their important events, such as graduation, sports events, birthday parties, etc.

What Are a Father’s Rights?
Fathers have the same rights as mothers.

Further, unless prohibited by the court, you are usually entitled to share custody with your wife during the divorce. She can't force you to forfeit joint-custody rights without your consent.

You must provide financial support for the children to protect your legal rights. Getting a child support agreement quickly proves you are serious about your legal rights and obligations to your kids.

Also, as their father, you have the right to remain active in all the parenting decisions, such as their church, religion, education, school, healthcare, etc.

Disagreements with your wife are common, and you will need to prove to the court that you can negotiate and compromise by working in good faith.

After you and your soon-to-be ex have reached a child custody agreement, you will both have rights and benefits and avoid conflicts in the children's best interest.

How Can You Prevent Problems with Your Wife?

One of the most effective ways to prevent potential problems with your children's mother over child custody issues is related to communication.

Be precise on what you seek and plan to ensure all the issues related to custody and visitation are apparent.

How Can You Prevent Problems with Your Wife in Divorce?
Good communication can often prevent problems.

Confusion is a source of conflict. Further, all your actions should be based on your child's best interest which will typically avoid any problems with your spouse. It's not about you or your wife.

Of course, there are situations where you and your wife are not on good terms and can't stand to talk to each other. Again, remember, it's not about your best interest or pride. The words you use can be misinterpreted when emotions are running high.

Be an adult and act according to what is best for your kids. If you can't, you will generally suffer the consequences when it's time for the court to make the child custody and visitation decisions.

If you leave a message for your wife, be concise and to the point. Don't say anything that could be misread and start an argument.

Even if you agree to allow your spouse to move away with your children, you should still seek custody and visitation rights which will protect you later in case you need to enforce a custody schedule.

If you need help with California child custody issues, then contact our law firm to examine the details and legal options. You can modify a child visitation schedule.

Furman & Zavatsky are Los Angeles divorce and family law certified specialists. You can get legal help by calling us for a free case evaluation or filling out the contact form.

About the Author

Mariya Furman

Attorney Mariya Furman is licensed to practice before all of the Courts of the State of California, the United States Court of Appeals for the Ninth Circuit, and the United States District Court for the Central District of California. After receiving a Bachelor of Arts degree from Case Illinois I...

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