My wife took my son and moved out of state without my knowledge, can she do this? 4 Answers as of February 14, 2012

Last week my wife had removed my son (7yrs) from school and hid him in an undisclosed location without my knowledge. Then she came home and packed all her stuff, my son's stuff and moved out. She would not tell me where he was at or who he was with. She told me she was moving with our son to Illinois. She did not give me warning in advance but did tell me she had been planning this for over a month. At the time both of us had equal custody. She did this because I found out she was having an affair and approached her on this. I immediately went to the court house and filed for child custody and legal separation. I have already seen a judge and he has allowed her 30 days to respond to a summons that I will have served to her via a licensed server in Illinois. Does she have the legal right to remove my son from the state of California without my consent? Can she deny me contact with my son? What rights do I have regarding this matter?

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McCallum & McCallum | Barbara Eiland McCallum
First of all, if you had already filed the Petition for legal separation and served her before she left the State, there would have been the automatic restraining order that the child not be removed from the State. Now that she has left with the child, and you do not have her address in Illinois, it becomes more complicated. She could (depending on Illinois residence law) file an action for a dissolution in Illinois as soon as it has jurisdiction. Here in California, the Judge could have made an order that if she doesn't respond in the 30 days, the custody would revert to you. Also, the Judge can extend the time for an additional 30 days if she doesn't respond in the first 30 days. The existing court order won't mean anything if you can't find her to serve her and if she is hiding (using another name, i.e. maiden name, new boyfriends name etc. Since there was no court order stating the you have joint custody when she left, it really isn't against the law. She can say she was taking a vacation. What you have is a concealment of the child from you. That is against the law. Constitutionally, she has the right to leave the State. But that doesn't include taking the child and concealing him. You probably (need to check Illinois law) have a child abduction case. You can report that to your local District Attorney (most have a child abduction unit) and they can contact the authorities in Illinois. If she files in Illinois, depending on what she tells her attorney (she is fleeing domestic violence etc.) The Judge in Illinois can contact the Judge in California and convince the California Judge that Illinois should have jurisdiction (especially if she has any relatives there). I had a similar case with Arizona and without notifying me the Judge here gave Arizona jurisdiction. Unfortunately, overworked Judges love to get rid of a case off of their caseload. Due to the huge Budget Cuts in the State of California for their Superior Courts, they are dropping services right and left. It is our understanding there will be an even bigger budget cut next year. So our courts are chaotic right now. Long lines, no law library, most of the windows are closed, not enough clerks. You didn't say where you live so I can only answer based upon where I practice in Sacramento.
Answer Applies to: California
Replied: 2/14/2012
Edwin Fahlen Attorney at Law
Edwin Fahlen Attorney at Law | Edwin Fahlen
The process required here is to obtain an Order to return the child, and place the mother on a no-contact, or supervised visitation. You are taking a great risk by simply filing a divorce case without obtaining emergency Orders. It is not to late unless you tried and were unsuccessful. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life.
Answer Applies to: California
Replied: 2/13/2012
Law Offices of Arlene D. Kock
Law Offices of Arlene D. Kock | Arlene D. Kock
You should file for an ex parte order requiring the child to return to your custodial care. If the mother is hiding the child, file a police report for child abduction by the mother. Please meet with an experienced Family law attorney to explore your legal options.
Answer Applies to: California
Replied: 2/13/2012
Diefer Law Group, P.C.
Diefer Law Group, P.C. | Abel Fernandez
If you are married, she cannot move out of state and take your son. You should be able to file an emergency hearing to have the minor returned to California.
Answer Applies to: California
Replied: 2/13/2012
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