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Do I have the right to bring my kids back to our home state?

Discussion in 'Child Custody & Visitation' started by Joe Buratti, Jan 14, 2023.

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  1. Joe Buratti

    Joe Buratti Law Topic Starter New Member

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    Jurisdiction:
    Colorado
    My wife and I have struggled in the past with infidelity (on her part). We got past that and moved on with our relationship which became stronger afterwards. We lived in New Jersey all of our relationship (through and past those past hard times). Due to some financial hardship and losing our house in NJ we decided to start a new life in Colorado with the kids. We moved here back in May of 2022 and things were going well. She got a new high paying job and we "were" settling in just fine.

    I recently found out she is now back up to old habits and cheating on me again (third time total, and first since moving to CO that I know of). I don't think I can deal with this anymore so thinking about moving back to NJ.

    My question is related to the kids and bringing them back with me if I decide to go. They have lived in NJ all their lives and really miss it there since moving here to CO. Although we all eventually agreed to move here, it was her coercing that finalized the decision to move.

    Sine I think I am finally done with this relationship. What legal right do I have to bring the kids back to NJ with me leaving her here in CO as she has been unfaithful for several years now and moving here was her decision.

    We all uprooted our lives for her idea to move leaving all our friends and family back in NJ .

    Any advice on this topic would be greatly appreciated.

    Thank you,
     
  2. justblue

    justblue Well-Known Member

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    You have every right to move back to Jersey. If you take the children with you expect her to go to court and file for divorce and for the children to be returned to their (now) home state. The Judge will very likely issue an order for the children to be returned to Colorado as that is the proper jurisdiction for divorce/custody.

    Do yourself, and more importantly the children, a favor and file for divorce/custody in Colorado.

    In order to move the children you will need to show that it is in THEIR best interest to be removed from their home state. You will do better if you have an attorney rather than pro se. IF the moved is granted by the Judge expect to be order to cover all/most of the cost of Mom's visitation expenses.

    Also ....lose the "she coerced me" garbage. You're a grown man and made a choice, she didn't hold a gun to your head and force you to uproot your lives.
     
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  3. adjusterjack

    adjusterjack Super Moderator

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    What are their ages?
     
  4. Joe Buratti

    Joe Buratti Law Topic Starter New Member

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    Hello all. Thanks for the suggestions. Their ages are 7 and 10. I guess to recap, my question is what is their "home town" considered to be at this point? They lived in NJ their whole life and only lived here on CO for the last 8 months.

    At what point in time after the move to CO from NJ would their home town have switched? Lets say hypothetically we were only here for a month when this happened and then I wanted to move back bringing them with me. Would the rules be different then? If so, when is that cutoff time frame from when I would be able to go back with them and when they would have to stay in CO?
     
  5. adjusterjack

    adjusterjack Super Moderator

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    Too young to have any "legal" role in the decision making process.

    "Home town" is not a "legal" concept and is irrelevant.

    "Residency" is what counts.

    To be subject to Colorado taxes - 90 days.
    To file for divorce - 90 days.
    To register and title your vehicles - 90 days.
    To transfer you driver license 30 days.
    Within those time periods you are automatically a resident if you became employed.

    You and your family have been residents of Colorado for quite some time.

    I suggest you heed Just Blue's warning and file for divorce in Colorado. Get yourself a place to live close to where the mother and children are living.

    Understand that there is still a double standard in the US. Mothers are more likely to win custody and child support (52%) than fathers (39%). With young children the odds are more against you.
     
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  6. justblue

    justblue Well-Known Member

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    Just to clarify: The "double standard" is due to mothers generally being the primary care givers of the children. The Courts love status quo. ;)
     
  7. Joe Buratti

    Joe Buratti Law Topic Starter New Member

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    Well I guess that would be issues to bring up in court, but I do primarily take care of the kids. I work from home and am here taking care of them 24/7. I barely leave the house and am the one taking care of mostly all their needs. She works late and often goes out afterwards (some legit business dinners but others for her shenanigans) and leaves me for all the childcare and household needs.

    None of the "who does what" for the kids can be proved so it would be her word against mine in court. Her cheating can be proved though.

    How does infidelity take a role in custody battles?
     
  8. Zigner

    Zigner Well-Known Member

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    Her "cheating" is irrelevant.
     
  9. Zigner

    Zigner Well-Known Member

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  10. adjusterjack

    adjusterjack Super Moderator

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    That might help with custody and support but you and the kids will still be stuck in Colorado unless she consents to you relocating them or you get a court order allowing it.
     
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  11. army judge

    army judge Super Moderator

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    ...
     
  12. Joe Buratti

    Joe Buratti Law Topic Starter New Member

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    thanks for the laugh. I've had that song stuck in my head for the last two days now.

    Even played it on the alexa blasting so she can hear
     
  13. adjusterjack

    adjusterjack Super Moderator

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  14. zddoodah

    zddoodah Well-Known Member

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    There is no law relevant to your situation. Where the parents are married and no divorce action is pending, either parent can take the kids wherever he/she wants. Of course, that means that, if you take the kids to NJ, your wife may legally come to NJ and pick them up and take them back to CO. Moreover, you won't be able to file for divorce in NJ until you establish residency, and during that time, your wife could file in CO and seek an order requiring you to return the kids to CO.

    Also, NJ is one of the most onerous states when it comes to length of child support. To my understanding, it is quite routine for NJ courts to order child support well into a child's adulthood.

    I strongly encourage you to consult with a local divorce attorney before doing anything.

    "Home town" is not a term that has any legal meaning. You and your wife and your kids were residents of New Jersey. Then you moved, and you all are now residents of Colorado.

    There's no point in considering hypotheticals. The facts are what they are.

    One would need to research case law in the state where the divorce takes place. That said, Colorado has no fault-based grounds for divorce (i.e., every divorce is a "no fault" divorce). By contrast, New Jersey still allows parties to seek fault-based divorce (including on the ground of adultery). Based on that, my guess is that a NJ court would be more likely to consider or give more weight to the adultery of one spouse when determining physical custody. However, other factors (such as who is the primary caregiver) should take precedence in either state.
     
  15. Joe Buratti

    Joe Buratti Law Topic Starter New Member

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    So I am going to veer off topic for a moment here. So obviously the arguments have moved on to more than just the cheating. One specific hot topic is money. Long story short is now she wants to remove herself from our joint account and get her own account and her money be her money alone and will give me her portion of all the household monthly expenses from her account. This would be moving forward while we are figuring out what to do with our relationship and even if we decide to reconcile she would still want her separate account.

    My question is what would be considered her portion of the household expenses at the moment. Would everything be split 50/50 or would we each contribute proportionally to our monthly income.

    For example, using just random figures, lets say our total combined income (take home) is $10k/mo. $6k of that is her income and $4k is my income. Lets also say that all household expenses (rent, utilities, groceries, etc) come to $6k/mo. So in this example, since she makes 60% of the total household income would she be responsible for 60% of the expenses so its now a 60/40 split, or would it still be 50/50

    I ask this because 95% of our relationship she was either unemployed or underemployed leaving me to cover 80-100% of household expenses myself during those times (or in other words proportionally, compared to each of our income as explained in the example above). We never had any agreement in the past about who paid what as it was a joint account and all income went into the same pot that the expenses were taken from.

    Now that she finally has a steady high paying job (higher than me), if we are splitting the income pot into two now, I would feel its only fair to keep the expenses split proportionally to our income as it always had worked out that way and not have to have a 50/50 split of these expenses.

    In all honesty and with more accurate figures, 50% of the monthly expenses would be my entire monthly income, possibly more than my income. This is why I feel a "proportional" split of the expenses would be more relevant here.
     
  16. Zigner

    Zigner Well-Known Member

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    This is something that YOU will need to negotiate.

    With that said: Why do you think that proportion of income has anything to do with household expenses? Heck, if she's out of the house more (at work), then her share would be less using that reasoning. If you're looking at a 50/50 split, then you take the bills and split them in half, with each of you owing your half.
     
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  17. army judge

    army judge Super Moderator

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    It has been observed over the years that when money discussions arise with one party desiring to SEPARATE the loot, it is time for the other party (in the instant matter at hand, YOU OP are the other party) to seek the services of an aggressive, top notch divorce attorney.

    In addition, the checkered past and serial cheating are further indicators that nothing will improve, the cheater is never going to become MONOGAMOUS, the relationship will only continue to deteriorate.

    I wish you well, OP.

    Be wary, be cautious, even standoffish, it is time for you to sever all ties using the legal process.

    God bless.
     
  18. leslie82

    leslie82 Well-Known Member

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    Legally you can take the kids since you're married. And she can always come and take them from you as long as you're married.

    If you're done with the marriage, get a divorce. Don't use your kids as pawns. Realize that divorce is going to be traumatic for kids that young. Especially if they don't know about what your wife is doing.
     
  19. stealthy1

    stealthy1 Active Member

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    Nor should they.
     
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  20. leslie82

    leslie82 Well-Known Member

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    True but my mom had an affair nearly my entire childhood and we knew about it - the whole town knew about it. Add in that she would take off every other weekend she had off work to see him...in fact we were glad when she was gone. I wish my parents had divorced back then. I know she wouldn't have fought for custody of any of us except the youngest and we found out when she did finally leave and filed that the youngest was biologically the other guy's. But my dad has always legally been his dad as they were married when he was born. My mom finally left when I was 18, youngest was 12, other younger was 16 and oldest two were out of the house.
     

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