Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“My six-year-old daughter is dying of cancer. I live in California but the specialist is in Phoenix, AZ. I have three other children. A 15-year-old girl, a 9-year-old boy and 6-year-old boy, my ailing daughterÃ¢â‚¬â„¢s twin.
I often need to go to Phoenix for treatment for my daughter. I have no choice but to leave my other children in the care of my husband. He is father of all but my eldest. When I’ve needed to be in Pheonix my husband on several occations has left my children alone for days without letting me or my daughter know how to reach him in case of an emergency. The longest has been six days. I would have returned instanly upon learning of my husband’s absence if it wouldnÃ¢â‚¬â„¢t of been a life and death decision in regards to my ailing daughter. My eldest is a very responsible girl however I find it unacceptable for her to bare this great responsibility. The reason he leaves is due to infidelity.
My question is, I want to end my marriage and take all of my children with me. I find that I can not depend on my husband to care for the rest of my children while I have to be in Phoenix for my daughter’s treatment. Can I do this without being charged with kidnapping or other legal problems?”
So long as nobody has filed any legal action under which there is already a custody order, such as a separation or divorce, you both have the full right to take the children with you. However, that said, I would strongly urge you to have a lawyer immediately file either a divorce or separation action in California, and request temporary emergency custody allowing you to take your children to Arizona. This can be accomplished in a very short period of time given the nature of your situation, and it ensures that once you leave your husband doesn’t file the same sort of action, forcing you to return the children to California.
That said, the above only applies to your three youngest children. You will need to either have a written agreement with your eldest daughter’s father, or petition the court to change your court order with respect to her custody and visitation, so that when you take her with you, you are not in violation of any existing court order. Obviously negotiated arrangements to which you and her father agree are preferable.