What are my rights now that my wife has moved out?

[lsummers68]

I am currently separated and waiting for the divorce to go final.  My wife has decided to move but leave our kids with me since we live in a very nice area with good schools for the kids and she is moving to an area where the schools are not the best for our kids.  My fear is somewhere down the line once she gets stable she will try to file for custody of the kids and have them live with her.  Do I have any rights now that she has moved or should I file for custody of the kids now to cover my bases?  Any help is much appreciated.

[mistoffolees]

>I am currently separated and waiting for the divorce to go
>final.  My wife has decided to move but leave our kids with me
>since we live in a very nice area with good schools for the
>kids and she is moving to an area where the schools are not
>the best for our kids.  My fear is somewhere down the line
>once she gets stable she will try to file for custody of the
>kids and have them live with her.  Do I have any rights now
>that she has moved or should I file for custody of the kids
>now to cover my bases?  Any help is much appreciated.

I would consult with a local attorney because the practice varies from location to location.

In general, the fact that she moved out and left the kids for you is a huge advantage to you since it establishes the status quo. The longer this goes on, the better the situation for you. However, the negative side of that is that as long as you don't have a court-sanctioned agreement, nothing is permanent.

As I see it, you have three options:
1. File for custody immediately. This creates the risk of starting a major battle and since it hasn't been that long, the status quo isn't as strong as it will be if you wait longer.
2. Don't do anything - but as soon as she tries to change the situation, you file for an emergency hearing. This has the advantage of not stirring up trouble and letting the status quo go on as long as possible.
3. Wait for some period of time and then file for custody. I don't know what amount of time would be appropriate, but you might feel more comfortable saying to the judge "the kids have been with me for 1 year (or 6 months or whatever) and I want you to order that it stay that way rather than filing right away before the kids' routine is established.

The 'correct' choice will depend on your location, the ages of the kids, financial matters (who is better able to provide for them), and a number of other issues, so I'd consult with an attorney for advice.

While you're talking with the attorney, I'd discuss visitation. It seems to me that it would be advantageous to be fairly generous with visitation during the waiting period so that she has less incentive to create trouble. However, this also establishes a precedent, so it's not quite that clear cut.

[lsummers68]

Thank you for the advice.  I am in the process of consulting with an attorney.  I think for now I need to give this a few weeks not to stir up any battles and then move forward with the filings.   Thanks!!!

[williaer]

Your rights are the same as hers- only she moved out- so now the kids live with you. You should immediately file for custody and support and while you're at it- file a parenting time plan that you like (whether it's 50-50 or every other weekend, or whatever)- then she has an uphill battle. Do you think she would be owrried about how it would affect you if she filed for custody? I'm going to go with doubtful. I don't think much of a parent who moves out and leaves their children behind. Not that she should have taken them- but she should have established a residence close enough to have 50-50 custody- for the sake of her children.