Is it possible in California to keep my wife from leaving with my son? 11 Answers as of January 19, 2011

My wife and I are getting a divorce in California, and we have a son together. She is threatening to leave the state with my son. Do I have to go to court to stop her?

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Law Office of Daniel B. Rubanowitz, APC
Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
In California, one of the initial documents required to file for divorce (besides the Petition) is the Summons. On the back of the Summons are Standard Family Law Restraining Orders (sometimes referred to as ATROS - Automatic Temporary Restraining Orders). These Orders are effective against the initial filing party (i.e., the Petitioner) once the Petition, Summons and related documents are filed with the Court. The ATROS are effective against the other party (i.e., the Respondent) once it is properly served by a third party upon him/her.

In answering your question, one relevant portion of the ATROS provides "Starting immediately, you and your spouse or domestic partner are restrained from 1. Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court." If your wife leaves the state without your consent or an order from the court, she is in violation of the ATROS and arguably stands in contempt. If you go to court for any reason, you may want to consider notifying the Judge of your wife's threats and seek a further admonition or a stronger order limiting travel. Further, I would request that the passport be held by one of the attorney's or the clerk of the court.
Answer Applies to: California
Replied: 1/19/2011
Goldberg Jones
Goldberg Jones | Zephyr Hill
Once you file your action, there are automatic restraining Orders that will keep her from leaving your county without your permission or a court Order. You have a good shot at keeping her here, so call a lawyer and get some help.
Answer Applies to: California
Replied: 1/11/2011
Cristiano and Lillard
Cristiano and Lillard | James T. Lillard
Has a divorce proceeding already been filed, if so, the automatic temporary restraining orders (ATROS) require your approval or an order of the court to remove a minor child. If she gives you notice of her intent to move, then you do need to go to court to try to get an order stopping her from leaving the state with the minor child.

If a proceeding has not been filed, she could technically leave tomorrow. You would then have to go to court to try to have the minor child returned.

If you truly believe that she is contemplating leaving and the marriage in your mind is over, then you should immediately file a dissolution proceeding and have her served with the papers to implement the ATROS.

If we can be of assistance, please do not hesitate to contact us.
Answer Applies to: California
Replied: 1/10/2011
Goodman, Dicus, and Teinert, LLP
Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
Yes. Throughout the process of the divorce a parenting plan will be put into place allowing you visitation with your son. If your wife wants to leave the state she will have to obtain a move away order. If she petitions the court for a move away order you should contact an attorney to oppose the petition.
Answer Applies to: California
Replied: 1/9/2011
Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
Yes you must file with the court to have a trial on the move away issue.
Answer Applies to: California
Replied: 1/9/2011
    Masson & Fatini, LLP
    Masson & Fatini, LLP | Richard E. Masson
    Currently, there are no restrictions on your wife from leaving the state with your son other than your right to bring him back to California if she does leave. Thus, the easiest and simplest way to preclude her from leaving is to file for dissolution or separation. By so doing, both you and her will be prohibited from leaving the state once both parties are subject to the jurisdiction (ie, been served) with the Petition. She may then only leave With your consent or an order of the court.
    Answer Applies to: California
    Replied: 1/8/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    If you or your wife have already opened a case with the court by previously filing a dissolution petition, then the standard automatic restraining orders (set forth on page 2 of the Summons), prohibits either party from taking the child out of state. If no case has yet been filed with the court, then I would strongly advise that you do so right away. At the same time, you can submit requests for immediate orders on custody and visitation.

    Even if your wife takes off with your son (without your consent) before any papers are filed with the court, that is called "abduction." There is a legal remedy for such conduct, including that wife may lose custody of your son. In short, it is a very bad idea to simply take off with a kid to another state, as that deprives the child from having a relationship with the other parent. Again, if she goes through with such imprudent actions, there is a remedy, although you will have to navigate the legal process to obtain such remedy.

    Feel free to contact my office for further assistance.
    Answer Applies to: California
    Replied: 1/7/2011
    Michael Rose Attorney at Law
    Michael Rose Attorney at Law | Michael Rose
    Yes, you can go to court to stop her. I need more information about your situation and if you have filed or going to file. You are welcome to call the office and we can talk.
    Answer Applies to: California
    Replied: 1/7/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    It is possible that you could prevent your wife from moving your son out of the state. You should promptly retain a Family Law Attorney who is knowledgeable about the complex laws and cases relating to "move-aways" to file an Order to Show cause to prevent the move-away. The existing custody and visitation orders,"de facto" custody and visitation, the quality of your relationship with your son, as well as your proving "detriment" to your son from the move-away, are important factors that will need to presented to the Court for its consideration of your Order to Show Cause.
    Answer Applies to: California
    Replied: 1/7/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    If a divorce has already been filed, then she is barred from taking your child out of state by the Automatic Temporary Restraining Orders on the second page of the Summons, however I would strongly recommend making sure you have a custody and visitation order in place to ensure she doesn't leave (the courts are far more likely to order her to return (or at least the child) if there is already an order that the child remain here. Long term, she may be able to get permission to move but that is an issue that would have to be addressed by the court.

    I would be happy to speak with you about representation. Please contact me for a free initial consultation.
    Answer Applies to: California
    Replied: 1/7/2011
    Law Office of Stephen Pearcy
    Law Office of Stephen Pearcy | Stephen Pearcy
    Yes, a temporary custody order would be necessary.
    Answer Applies to: California
    Replied: 1/7/2011
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