Question asked on Oct 24th, 2015

Q: I am about to file for legal separation and move to Nevada to be near family. I am 4 mths pregnant and my husband is a lush who doesn’t want to work. He lives in NY state and I have NO family or friends up here. My family is willing to get me set up and support me until I can get on my feet. They have paid for my move, my plane tickets and I leave in two weeks. My boxes and bags are packed. I checked with legal aid before we planned this. The family lawyer advised me to move NOW so that the baby falls under a different jurisdiction. Trying to move after the birth will cause serious complications. According to that lawyer: *My ex will only have 6 MONTHS after my child is born to file a petition to attempt to force me to move back. If he doesn’t file in 6 mths * she said he loses or terminates those rights as a father. Then I am reading online that he can try to force me to move back at anytime. Do I have to worry about being forced to move for the next 18 years?

 A: Short version:  “no.”  I have recently litigated this and all the relevant law — including the New York cases — says that it is the State of birth of the child that has exclusive jurisdiction over the issue of child custody; if you move to Nevada before the child is born, that State will be Nevada.

What may be confusing you is the distinction between jurisdiction and substantive orders.  Anyone with a filing fee can file a motion asking for anything — including that the other party be made to do something (like move to some other State).  While it is theoretically possible that such an order could be entered, it does not seem likely on the few facts you have revealed.

Either way, the 6-month rule that it appears you are being told of concerns gaining a new Home State for child custody purposes, and in your situation, is irrelevant — Nevada will be the child’s Home State instantly if the child is born here.

You may want to see the information posted at https://www.willicklawgroup.com/child-custody-and-visitation/, especially the article on the Basics of Family Law Jurisdiction.  You did not say where you did or intend to file for legal separation, but it might not be a good idea to do so in a State where you do not intend to live — at least until after you have relocated.  Getting good advice in both New York and Nevada should be near the top of your agenda BEFORE filing anything.

Marshal S. Willick
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