Will I have more trouble getting custody of my children if I move out of my house during my divorce? 12 Answers as of June 17, 2015

I am getting a divorce from my husband, mostly because all my husband and I do is fight. He refuses to leave the house, and we can no longer live together, so I want to move out. However we both want custody of our kids. If I move out and he stays with the kids, will I decrease my chances of getting custody?

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Law Office of Barton R. Resnicoff | Barton R. Resnicoff
The short answer is yes, but... Relevant is why you move out. But NY case law indicates that by moving out, you informally enter into a custody agreement; while somewhat easy to modify, it does put you at a disadvantage. If you move out and let the children live with him, you are also informally indicating that he is a fit custodial parent. Is there domestic violence in the home? Are these incidents sparked by his actions in trying to control the situation? If he is abusive you cannot leave the children with him. On the other hand, if he is abusive, you can utilize the Courts to eventually get him removed from the house.
Answer Applies to: New York
Replied: 6/17/2015
Law Offices of Lauren H. Kane | Lauren H. Kane
I would take the children with you.
Answer Applies to: Pennsylvania
Replied: 6/17/2015
Law Office of Martin A. Kahan | Martin A. Kahan
It depends on many factors, the best interests of the kids and the ability to parent are the key issues.
Answer Applies to: California
Replied: 6/17/2015
Grace Law Offices of John F Geraghty Jr.
Grace Law Offices of John F Geraghty Jr. | John F. Geraghty, Jr.
That may not be a good idea in your situation. But if it is unavoidable you may be able to explain to the court valid reasons.
Answer Applies to: Georgia
Replied: 6/17/2015
Law Offices of Helene Ellenbogen, P.S.H | Helene Ellenbogen
Custody is not the issue - the amount of residential time is. Instead of moving out, file the divorce and immediately thereafter a motion for temporary orders that orders him out of the house, letting you and the kids stay. Propose a reasonable parenting plan that allows time for each parent with the kids and a temporary order of child support. Ideally get a lawyer to do this for you.
Answer Applies to: Washington
Replied: 6/17/2015
    Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
    Your moving out should make no difference in determinations of custody and physical placement, since the test is 'best interest of the child(ren).' That said, it would be best for you to commence the divorce (if divorce is your intention) so you can get into court on a temporary order as soon as possible and have some court-ordered temporary arrangements for these matters. Locate an experienced family law attorney: it's almost always worth the investment.
    Answer Applies to: Wisconsin
    Replied: 6/17/2015
    John Russo | John Russo
    Yes, there is a way to get him out especially if you are in RI, but you really should retain a Family Law attorney, not just an attorney.
    Answer Applies to: Rhode Island
    Replied: 6/17/2015
    Diane l. Berger | Diane L. Berger
    In my opinion, yes.
    Answer Applies to: Nebraska
    Replied: 6/17/2015
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    Yes. Please meet with an experienced family law attorney to assess your options.
    Answer Applies to: California
    Replied: 6/17/2015
    Attorney at Law
    Attorney at Law | Frances An
    Yes. You need to file for dissolution of the marriage, then file a Request for Order for move out order for him. If you leave, the court may decide that you abandoned your children.
    Answer Applies to: California
    Replied: 6/17/2015
    The Law office of Karla M Mansur
    The Law office of Karla M Mansur | Karla Mansur
    The short answer is probably yes, unless the children are coming with you. Otherwise he will start establishing himself as the primary parent, and the court likes to keep the status quo for the sake of the children. If things are really bad you might consider asking the court to vacate him from the marital home. Good luck.
    Answer Applies to: Massachusetts
    Replied: 6/17/2015
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Your question is impossible to answer without additional facts, I would suggest that you confer with an attorney and my first impression is that you should be filing for divorce and seeking potentially in order to have him removed from the house if it is impossible for both of you to reside there.
    Answer Applies to: Michigan
    Replied: 6/17/2015
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