Moving Out


#1

This is a very difficult situation. Normally, it is easier on the child(ren) if they stay in the marital home they are used to. It is less stress on them because they already are going to have to get used to mom or dad not living in the same house. Then to have to get used to a new home also. Most of the time the child(ren) are worried that the other parent will leave also and though that makes no sense to us as adults you have to remember that they would not have believed that mom or dad could leave either. I would normally suggest to leave the child there and make arrangements for shared custody to begin after you are settled (a couple of days later)but this situation though it could look to your daughter that you are choosing her 1/2 siblings over her if you do not take her with you. I think that you and your husband need to speak about this either outside of the home or when the children are not there. You leaving him doesn’t have anything to do with your daughter. Let him know that you do not want your daughter to feel like she’s being left behind and that it would not be a permanent arrangement because you want to share custody. Do your other children see their father? It may be that can help “explain” things to her also. If she is old enough to understand this situation then you may consider asking her. She doesn’t have to choose but she can if it will make the situation less dramatic. As I said, it doesn’t have to be permanent. If she wants to stay with her dad then let her stay, but let your husband know that you will be picking her up and specify day and time. Depending on her age, make it every other day or every two days until she gets used to the idea then you could switch week to week. If she wants to leave with you then let your husband know that you will drop her off in two days and specify a time.

It really would be a good idea to get an agreement before you leave, because I not sure if there is a legal way to handle this without an agreement. Without an agreement between you two or a court order you two have to decide what is going to be less traumatic on the child and as her parents sacrifice your own feelings for her. By that I mean that if you do ask her…do not make her feel bad about what she wants. If she chooses to stay at the home then you need to accept that and leave her there, and your husband needs to do the same. I do not in any way mean that you should force her to choose but if she is old enough then this part of the decision could be hers. You will still share custody until you can agree or go to court.
It sounds as though he is hurt and angry and is trying to do anything to control the situation. It may be that he doesn’t believe you about sharing custody and thinks that if you take her with you, he will never get to see her again…
Maybe an attorney will answer on this one…


#2

The daughter in question is five years old. I dont think she would understand the concept of choosing.

He has stated that he is not intending on sharing any kind of custody. He is going so far as telling me that he is going to tell the judge that I am mentally unstable becuase i told him that I would rather die then be without my children.

I have totally agreed to the fact that we should have joint custody especially with the fact that I dont intend to move far. I have never threatened to keep her from him. He on the other hand is insisting I am an unfit mother. I keep telling him that trying to fight this to keep her away from me completely is going to cause her damage and he said that its my fualt that I should of thought of that before askign for a divorce. That he will make sure she knows that I am the reason we are not all together. I just cant seem to get him to understand that fine he can dislike me all he wants but some of his vengefull acts are going to hurt him too.


#3

Okay. Next Question.

If seperation is filed can my husband have me kicked out of the house?

He keeps throwing so much stuff at me I dont know what is true. He already has a lawyer I know that much and when he wants to throw somehting in my face he tells me that is what he has been told.


#4

If there is no Agreement or Order on custody, then each party has rights to custody 100% of the time, which means that you can leave with your daughter or he could prevent you from taking her. This obviously does not put your child in a good situation. If there are no issues of domestic violence in your home, it might be best to try and work out a custodial schedule before you leave.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

I agree that 5 years old is too yound to decide that. My suggestion is to talk to your husband again about this. You will eventually have to agree to something or you could be in this standoff permanetly. I suggest that either he takes her somewhere when you leave, if you aren’t taking her with you, or he goes somewhere when you leave if you are taking her. She does should not be put in the position of where you are physically playing tug of war with her and screaming at each other.

A separation agreement is an agreement between you and your spouse. If you sign a separation agreement one of you will need to move from the home otherwise, the separation does not begin. There really is no “filing separation”. You have a separation agreement drawn up with the date the separation begins or is to begin and then one of you move. He can file for “Divorce from Bed & Board” for fault and have you be the one to leave, but there are only so many reasons he can do this and if it’s not filed in conjuction with custody, equitable distribution then these are seldom done. The reasons are: "The complainant seeking a divorce from bed and board must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery."
No, he can not have you declared mentally unstable because you said you would rather die without your children. He’s blowing smoke. Unless you have a history of mental illness and are being treated by a physcian for psychiatric purposes, not including counseling for stress of divorce, but a serious mental illness, you have nothing to worry about.
My husband was asked on the stand what he would do for his children and he told the court that he would give up his life, in fact he said that he would give up the attorney’s life for his children. The judge thought this was appropriate. Most parents should feel that they would do anything for their children and to be with their children. Keep reading on this site to find out what he can and can’t do. There are statutes that the law follows on most things during divorce. I would consider contacting an attorney to consult on this custody issue though…it looks as though it may get uglier.


#6

So if I have commited adultry I can be kicked out of my home, without my daughter?


#7

If your husband can prove adultery he can file for Divorce from Bed & Board and you would be required to leave. Essentially, kicking you out. My question to you would be, why would he do that if he intends to make it known that you are responsible for the “family” not being together? If he truly wants you to stay together then this is not the way to go about it. And adultery has very little if any influence on custody issues.


#8

Adultery is one grounds for a person to bring an action for a divorce from bed and board. A divorce from bed and board is often a lengthy process, while the divorce from bed and board can be granted, technically a Judge cannot order you out of the home, though they often do so. You will not be evicted simply because you have committed adultery, the law is not cut and dry on this issue.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#9

I have recently found a place that is well situated to move me and the children. It is in my price range fifteen min from work and ten min from the childrens schools. I want to move out but I dont have a lawyer yet. I havent been able to afford one. I have three children the youngest is by my husband. He just told me today when I told him I was planning on finally moving out, that I was not going to be able to take my youngest with me. Legally how can I handle this? Do I have to have a lawyer before I move out? I cant just walk out the door with my other two and leave her behind. He has known that I was leaving, but I think with in the last month since I hadnt advanced on anything he believed that I might have changed my mind. Any advice on how I can handle this situation so I dont loose my daughter?