[CA] Can a parent move out of state with a newborn to escape domestic violence before any custody order exists?

CA Family Law

Liz

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With being married, you both have legal custody until there is a court order (Cal. Fam. Code § 3010). That means you could leave and take the child. However, he could then file in CA to bring the child back, which you would then have to fight in CA, as it's the child's home state (Cal. Fam. Code § 3402 and § 3421). The court could also order the child returned while it's pending (Cal. Fam. Code § 3063). Although, the violence is supposed to be a factor (Cal. Fam. Code § 3011 and § 3044).

FL-260 Document: Petition for Custody and Support of Minor Children

FL-300 Document: Request for Order

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Can I legally leave the state of California with my 8-week-old child if the father is a danger to me (the mother) and I have nowhere to live?

Lexi, Chatbot

I understand that you're in a difficult situation, and it's important to prioritize your safety and your child's well-being. Have you already taken any legal steps, such as obtaining a restraining order against the father?

Yes, but it got denied twice.

Lexi, Chatbot

Are there any existing custody agreements or court orders regarding your child that we should be aware of?

No.

Lexi, Chatbot

Is there anything else the Family Lawyer should know before I connect you? Rest assured they'll be able to help with your child custody issue.

No.

Liz

Hi there! Welcome to our service. My name is Liz and I've been an attorney for more than a decade, and I am here to assist with your legal concerns. Just so you are aware, our service is a legal information-only site. No attorney-client relationship is formed from our conversation. So I can best help, did the father establish paternity?

Thank you, and what do you mean by "establish paternity"?

Liz

Establishing paternity means legally determining who the father of the child is. Was he at the birth and signed an affidavit?

He's the father and my husband. His name is on the birth certificate. He was there for the birth.

Liz

Understood. Would he file in court for custody if you left?

I believe so. He's already thrown me in jail, and suggested I tell the court I'm 51-50 so he can get full custody.

Liz

Liz

Have you filed any police reports?

He lied about a DV so I would get arrested, and he's always trying to keep my son away from me as long as possible.

Liz

Were the DV charges against you dropped?

He said he would drop them. This just happened recently. In the meantime, I have filed the restraining order against him, but it got denied. The court date is coming up, I think.

Liz

With the charges open, that can make it so you can't get an order, as you would be seen as the aggressor.

However, after I've had the child this entire time, I don't know if he will drop them. He was supposed to get our son back Thursday of last week, but I had already filed Wednesday. And I was not at the house, and not speaking with him.

Okay. But he antagonized me, and the cops even said they saw that. And he's been emotionally and mentally abusing me for a while now.

Liz

Is he a risk to the child?

He's a risk to me. He threatened my life in November and said if it wasn't for this child, he sincerely envisioned hurting me every day on the way home from work. Shooting, strangling, choking me.

Liz

I'm really sorry to hear about the difficult situation you're in. That sounds terrifying. Have you considered filing for divorce or separation? That could also get you orders that could help protect you.

He said he got the papers to file, but hasn't done it yet. He has not been living in the apartment. Prior to that, we were living together but knew we were divorcing and wanted to be split up by the end of this year.

Liz

Has he agreed that you have full control of the apartment?

Yes, he wanted to pay rent and I pay utilities while I was there, as long as I stayed there with his son. But this past week he tried to say we split it down the middle.

Liz

Has he ever provided care for the child?

Yes, all the time. He would always help with feeding and watching him when needed. He did work a lot, so he would always take him to his parents' house. Again, he is just now 7 weeks old, and he brought him around toddlers and a 7-year-old.

Liz

The court does favor 50/50 custody, so that can be complicated if he does provide care. Although, the fact he's still so young can have the courts consider the violence more, since your son can't currently speak for himself.

Okay, so legally what can I do? They won't grant the restraining order. I can't go back home. And if I talk to my husband about giving my son back so he can see him, he'll probably never give my son back to me. I also don't have a place to live.

Liz

Where were you seeking to relocate to?

Arizona, from California.

Liz

How would he see the child after the move? That can be an important factor. If you filed, you could also seek temporary support to assist with getting set up. Since there are pending charges, leaving the state without dealing with them could also trigger a warrant.

He would drive to see him. But as of right now, I have nowhere to live. It's too scary to go back home at this point. I don't know what to do.

Liz

Do you have somewhere in AZ to stay?

Yes.

Liz

You could technically move, but with taking the child, he could seek that the child be returned to CA, even if you stay in AZ. Although, he'd need a court order to force it.

Is that the FL-300 form? Could I file first, since he's been a danger to me?

Liz

The FL-300 can request temporary orders.

How can I get a court order to keep the child?

Liz

You could request temporary custody orders with the FL-300, but he could also object. You also would need to file either the divorce or for a full custody order.

Could I do this while living in AZ and just drive back and forth for these court dates and hearings?

Liz

You could, unless the court orders the child to return to CA.

Okay, how do I file for a full custody order?

Liz

The FL-260 is the beginning form. https://selfhelp.courts.ca.gov/petition-custody-support/fill-forms

So I would file this, then a divorce?

Liz

Or you could just file the divorce, yes.

Liz

I hope I was able to help! If you have any other questions, feel free to ask.

Liz

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