No court order in place yet

My wife cheated on me and took the kids (3, 6) across state lines. She put our daughter in school. During this time, I tried to fix our marriage and see the kids as much as I could. I hesitated to keep the kids at home because of that. After a few months, I filed for divorce because things weren’t getting better. I want to be the primary parent. We bought a house less than a year ago, and I have a good job here. She replied to my divorce filing and wants to be the primary parent. According to my daughter, the guy she cheated on me with is living with them now. This situation is still very new, starting in June.

I am posting because I want to bring the kids home. Without a court order, I have the right to do this. The only concern is that she has had them most of the time, and she has set up her life there. Is it too late for me to do this? Will the court look at this negatively? It took her a couple of months, but she found a job and an apartment. She’s not a criminal and doesn’t do drugs as far as I know. But she doesn’t spend enough time with our kids. She has a new partner and leaves the kids with family on weekends if I don’t have them. I know this is not illegal. I just want my kids back home because I care about them.

I have a lawyer and filed for divorce in late July.

You may need a new lawyer. She should have been made to bring the kids back the week after you filed. Get a court order to make her comply. I got my kids back within days, but that was a long time ago. The judge was really angry. Time is running out.

@Jesse

She should have been made to bring back the kids the week after you filed.

OP says she enrolled the kids in school and has been there for months. He first tried to save the marriage and then filed in July. That means they’ve been there for months, so it’s not a clear-cut case because he waited. Now they seem established in their new home.

@Samuel
As long as it hasn’t been 6 months, jurisdiction is in his state. Even if it has been over 6 months and there’s proof of false reconciliation, her new state may send the case back to him anyway. The fact that he filed first is a big advantage. It doesn’t matter if they are enrolled in school. School just started, and this is evidence. His ex will most likely lose. If they are in a state that looks at fault or alienation of affection, his lawyer should prepare to depose her affair partner if he can. OP’s lawyer needs to file a court order for possession.

If she isn’t spending enough time with the kids, who is taking them to and from school? Who takes them to doctor appointments? Who makes sure they eat and do their homework? Who is there for them when she isn’t? She can have a life, but are your kids safe with the babysitters? Why don’t you take them for the weekend if she needs a break? What will you do when you need a break?

@Oren
You’re right, I’m jealous. I’m jealous she gets to spend time with the kids but chooses to leave them with family to keep dating the guy she cheated on me with. If they weren’t 500 miles away, I’d see them every chance I could. I used to see them every weekend, but that wasn’t sustainable. She’s doing the bare minimum to care for them. Yes, she gets them to daycare early and picks them up late. She spends maybe two hours at night feeding, bathing, and rushing them to bed. No, she isn’t taking my daughter to the doctor for her breathing issues since the move. Yes, I will need breaks too. If I had to choose between going out or spending time with my kids, I’d choose my kids every day. They’re way cooler than anyone else I know anyway.

I’m not claiming to be perfect, but she always said I was the fun parent. I read to them every night, we have pizza on Fridays, doughnuts on Saturdays, build things together, and go to parks or walking trails. I had so many routines with them. Her only routines are meeting their basic needs. Sure, they’re fine, but they’re not thriving.

If a family member is watching your kids, just pick them up and keep them until court. Nothing says you can’t take them and hold them. Since there’s no custody paperwork, she can’t do anything.

Sage said:
If a family member is watching your kids, just pick them up and keep them until court. Nothing says you can’t take them and hold them. Since there’s no custody paperwork, she can’t do anything.

Without any orders, she can do the same. I’m worried about the back-and-forth disrupting them more than necessary.

You need to file for divorce and custody of the kids now before she meets the requirements to file in that state. Talk to a lawyer tomorrow.

Galen said:
You need to file for divorce and custody of the kids now before she meets the requirements to file in that state. Talk to a lawyer tomorrow.

Since she filed for divorce, I wouldn’t let her move the kids. It doesn’t matter if you think she’s a good person and doesn’t do drugs. She moved the kids without your permission, and that move isn’t in the kids’ best interest. It’s in hers. I would definitely see if you can get an emergency order to have her return the kids.

Galen said:
You need to file for divorce and custody of the kids now before she meets the requirements to file in that state. Talk to a lawyer tomorrow.

I guess you didn’t read the whole post. OP filed for divorce in July.

@Jade
Divorce doesn’t matter for child custody jurisdiction. After six months, without going through steps, jurisdiction will be in Mom’s new state. In my area, it takes 3 months just to get a consult. Time is critical.

If it’s been less than 6 months since she moved, the kids are still residents of your state, and your state still has jurisdiction. You should be able to make her return with them, but you need to act NOW!

Attorneys will usually follow your instructions. The clearer you are about what you want, the more likely they will take the actions you want.

It can help to talk about the options and the costs of each. Then choose what you want. A typical path has a lot of activity when the first filings are made, then a long wait until hearings, and then a lot of activity again.

If your wife has moved out of state with the kids, there will be even more activity. Ask your attorney if an emergency hearing is a good idea. Your goal is to minimize disruption to your kids. Don’t accuse your attorney; instead, ask what it takes to get the outcome you want.

If you filed in your state on time, she may be made to move back or lose custody.
This happened to a work acquaintance, and she lost custody. She had no right to take the kids out of state to live with her and her partner. I’m not sure if she lied about a job transfer or not.

You should have filed something right away or within 6 months of them leaving. If it has been longer than 6 months, the kids belong to the other state.

Oren said:
You should have filed something right away or within 6 months of them leaving. If it has been longer than 6 months, the kids belong to the other state.

Not necessarily true at all. OP needs to talk to his lawyer about this.

@Jade
Look up UCCJEA, which defines the child’s home state as the state where the child lived with a parent for at least six months before any custody proceedings. This applies to 48 states in the US.

“Not necessarily true at all.” Okay.

@Oren
You missed the part where he filed for divorce in his state, which gives that state jurisdiction. What you referenced only applies if no jurisdiction has been established.

Jade said:
@Oren
You missed the part where he filed for divorce in his state, which gives that state jurisdiction. What you referenced only applies if no jurisdiction has been established.

No. The UCCJEA is not paused until a state makes a parenting order. Filing for divorce is not an order and not a parenting order for UCCJEA jurisdiction. Even if a state takes Home State jurisdiction, another state can still take it for various reasons.