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How Can I Leave CA before a divorce or custody decision is final?

Discussion in 'Other Family Law Matters' started by member 129456, Aug 23, 2020.

  1. member 129456

    member 129456 Law Topic Starter Guest

    Jurisdiction:
    California
    Before I ask my question I will need to give a slight background on my situation. I am married to a guy who is a felon, he served 10 years in prison for attempted murder. He has been out for 9 months and i am 8 months pregnant. He is on a parole and also currently on the run from the cops. He evaded a police officer, no warrant has been filed yet but they keep saying he needs to go talk to them. But he is still hiding out, hes on parole and carries a gun and is off and on with drugs. I dont want to be with him however he threatens me of course when i talk about leaving and especially because our son will be born in a month. I have talked to my family in oregon and they said they will help me with my son and get back on my feet and will even come down from oregon to help me move after he is born. I live in CA and need to get to oregon for mine and my childs safety. I would be looking to go once i recover from my csection, how do i go about doing this? Is there a way i can get quickly get permission to leave the state once my son is born so that way we are away from CA and my husband? I can handle the divorce and custody once im settled in oregon with my family and would be willing to fly back to CA for any and all court hearings. I understand our court case would have to be here in CA but for safety reasons I need to leave as soon as possible. What can I do legally so he cant go to court and take my son and claim I kidnapped him? Please, any advice or direction will be greatly appreciated
     
  2. cbg

    cbg Super Moderator

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    The time to leave the state is BEFORE your son is born. BEFORE the birth the state has no jurisdiction on where you live or where you go. AFTER the birth, it is possible that your husband could get an order prohibiting you from taking the baby out of state, but BEFORE the birth, you can take the unborn child anywhere you want to and no one can do anything about it.
     
    Zigner and justblue like this.
  3. member 129456

    member 129456 Law Topic Starter Guest

    I have tried to find an OB in oregon that will take me as a patient but I havent had any luck. I am to far along, I have explained my situation but right now no OB is willing to take me as a patient. Thats why Im trying to figure out what I can do for afterwards. I know its not going to be easy but I am strong and will do whatever I have to do. Thank you for your response
     
  4. Zigner

    Zigner Well-Known Member

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    There are obvious questions about your judgment that I will leave unasked...

    You need to move now and figure out the rest later. Really.
     
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  5. justblue

    justblue Well-Known Member

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    Did you marry this felon before or after he was imprisoned? If before, why didn't you divorce him while he was in prison? Why did you chose to have a child with him?
     
  6. mightymoose

    mightymoose Moderator

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    I agree with the above. Move before the child is born and California will not have jurisdiction. The father will have difficulty trying to do anything without getting picked up for parole violation. If you know where he is you could report his location and whatever other information you have to his parole officer.
    You will get medical care after moving. Your trouble finding a doctor likely has to do with COVID, but you won't be refused medical treatment at a hospital, and you can get assistance from social services if needed. Help is out there.
     
  7. zddoodah

    zddoodah Well-Known Member

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    Just so we're clear, did you choose to conceive and keep this child with him? Or is the child a product of rape?

    The law has nothing to say about married parents and their living arrangements. Nor does it have anything to say about the living arrangements of spouses while one is pregnant. Only if/when one of you files for divorce will there be any restrictions on your ability to move with a minor child of the marriage. If one of you files for divorce before you leave California, you will need the court's or your husband's permission to move (once a divorce is filed in California, several restraining orders go into place automatically, and one of them is that neither spouse may remove a minor child of the marriage from the state). If you move to Oregon before a divorce is filed in California, then you run the risk of your husband filing in California and seeking a court order requiring that you return the child to California. You will not be able to file for divorce in Oregon until after you have lived there at least six months.

    As indicated above, that's not necessarily true.

    You meant to say "our son," right? "My son" was just a typo, right? In any event, you cannot "kidnap" your own child.

    I strongly suggest you consult with a local family law attorney ASAP.
     
  8. mightymoose

    mightymoose Moderator

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    The California statute regarding interference with custody/visitation orders is commonly referred to as parental abduction. If mom should leave the state after the child is born and deliberately deprive the father of custody or visitation rights it would be called exactly that.
    Since they are married the father will inherently have custody rights to the child the moment it is born.
    If mom leaves after that she risks a parental abduction offense. However, given the father's status it seems less likely he would pursue it.

    Granted, the father will still have custody rights if mom gives birth in Oregon, but at least the issue would be based there and not in CA and the issue of relocating will have been resolved legally.
     
    Last edited: Aug 24, 2020
  9. Zigner

    Zigner Well-Known Member

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    Mom is a lawful custodian with a right to custody. If our OP (mom) left the state after birth, she won't be guilty of parental abduction simply because she left the state with the child while married to the father.


    Law section

    Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.
    (emphasis added)

    EDIT: Perhaps you are referring to Child Abduction (PC 278.5)? On the surface, it would appear to be a more appropriate charge,
     
  10. mightymoose

    mightymoose Moderator

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    If she does so with the intent to deprive the father of custody, yes, she will.

    You quoted the wrong statute. You want 278.5
     
  11. Zigner

    Zigner Well-Known Member

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    CHILD Abduction, not "Parental Abduction", as you stated.

    In any case, one should also refer to PC 278.7(b), which would seem to apply in our OP's situation and negate 278.5. Of course, the OP would need to follow the steps outlined in 278.7.

    Law section
     
  12. Zigner

    Zigner Well-Known Member

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    I *do* completely agree with this.
     
  13. mightymoose

    mightymoose Moderator

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    I'm not the one who named it. It is commonly referred to as parental abduction. The key to this is that the one parent deliberately acts to prevent the other's access to the child, which is exactly what the case would be if the intentions above are carried out.
    If there is domestic violence involved she still would not be able to leave the state so easily without consequence. The required reporting of that act would keep her bound to the local jurisdiction.
     
  14. Zigner

    Zigner Well-Known Member

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    I disagree with your statement about the name. The code sections are clear in their titles, and if one uses the title incorrectly, it causes confusion.

    As for you statement about her being "bound to the local jurisdiction", are you speaking about about a physical constraint on leaving the jurisdiction, or are you just pointing out that, even after the move, the child's residence prior to the move still retain jurisdiction?
     
  15. leslie82

    leslie82 Well-Known Member

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    First - I'm going to say ignore the comments of people asking "What were you thinking" or "why did you choose to keep the baby" or "is it a product of rape?" Etc. That honestly doesn't matter here and you cannot go back in time to fix the choices you made. It doesn't help your situation at all to get judged.

    You need to move now. Ask your family to get you now. You will get care once you go into labor. No hospital is going to deny a pregnant woman care. Things will be 100% easier if you go now. Especially since he has all this legal trouble.
     

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