Question: My wife and I live in Davis and have two children. We have been going through a lot of marital issues recently. We have considered divorce, but both of us put it off for the children’s sake.
This spring, we had a serious conflict, which prompted her to visit to her sister up in Oregon for a couple of weeks. She returned, but things did not get better. We agreed that when the children were out of school, she could take them up to Oregon for the summer to stay with her sister.
I agreed because it is a nice spot for the children, offering them a break from the Davis heat and our marital issues. Besides, my work has me traveling a lot this summer. When my schedule settles down, I am looking forward to seeing them back here the second week in August.
Recently, my wife has made some comments about how the children were making a lot of friends up there. She also mentioned that the schools are really good where they are. Now, I am concerned that she is looking to stay in Oregon with the children rather than come back in August.
Can she do that — just not come back with the children? If she does that and files for divorce up there, is that where the kids stay?
Answer: As you suspect, your wife is probably not being completely forthright because there is no way that the children can do better in any school outside of Davis. The combination of outstanding teachers and neurotic Type-A parents with advanced degrees make Davis schools second to none.
In all seriousness, however, your wife cannot just keep the children up in Oregon against your objection. Not only is it a form of kidnapping but there also is a process for determining child custody issues. She has to follow it.
Your wife cannot file for divorce in Oregon because that state requires that she be a resident for at least six months. Different states have different residency requirements. For example, California also has a six-month residency requirement, but Nevada’s is six weeks.
But you need to be aware that she can file for legal separation now and then amend her case to include a divorce once she lives there for six months. As part of the legal separation, she can ask that the Oregon court make certain orders regarding child and spousal support. Dealing with this from afar could be a major inconvenience for you.
Assuming she files for legal separation, the legal determination regarding custody of the children, however, likely will remain in a California court. Although the Supreme Court has weighed in on the constitutional right to marry, most laws relating to domestic relations are enacted by the states. State laws can vary greatly.
But every state in our country, except Massachusetts, has enacted the same set of laws regarding which state court is the right one to make and enforce a child custody determination. The law is known as the Uniform Child Custody Jurisdiction Enforcement Act.
Under that act, only the court in the children’s “home state” has the authority to make an initial custody determination. With some exceptions for emergency situations, if another state is asked to make a custody order, it must refuse and allow the home state to proceed.
The “home state” is defined as the state in which the child was living for six consecutive months prior to the child custody proceeding. Since your children have not been living in Oregon for the consecutive six-month period, their home state remains California.
But if you let the children stay in Oregon and she starts a proceeding after the children have been there for six months, Oregon could have the authority to even make custody decisions in your case, which could put you at a serious disadvantage. You should seriously consider filing in court here so that your case is handled here.
Even though a California court will decide the custody and parenting plan, that doesn’t necessarily mean that the children will stay in California. If your wife wants to move to Oregon with the children, she can petition the court to do so.
After looking at all the evidence, a court here may determine that it is in the best interest of the children to reside in Oregon with their mother. These cases, known as “move away” cases, can be quite difficult.
You should seek the help of a family law attorney soon. If you don’t act fast, you may end up playing a lot of defense, which could place you at a disadvantage.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at http://kopperlaw.com.
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