In the time leading up to a divorce, it is not uncommon for one spouse to move out of the house. If the relationship becomes highly contentious, one person may move out just to get away from the stress or even be kicked out. In other circumstances, a spouse may move out if he or she doesn’t feel safe living under the same roof as his or her spouse. If you are considering moving out of the house, have already moved out, or have been asked by your spouse to leave the house, it is important that you understand how this action could affect your future battle for child custody. Unfortunately, if you move out of the house it could hurt your child custody case.
How Judges Decide Custody
If you and your spouse cannot come to an agreement on child custody on your own, then you will need to argue for custody in front of a judge. To see how moving out of the home could hurt your chances at custody, you must first understand what criteria a judge takes into consideration when making a custody decision.
The overarching consideration a judge makes when determining custody is the best interest of the children. Unlike you and your spouse, your children often don’t get a voice in a custody battle (though older children can state their personal custody preference). Thus, the judge must represent the best interests of the children. To this point, a judge will look at a wide variety of factor before making his or her determination. One big factor is the children’s established living pattern. A judge is more likely to look favorably on the parent who can best provide the children with continuity, which includes keeping the children in the same house, allowing them to go to their current school, etc.
By moving out, you may seem like the less stable parent and the parent less able to provide continuity to your children’s established living patterns.
Should You Stay in the House?
This is a difficult question to answer. If you feel that you are not safe in the house with your spouse, then you should not stay. You will also have to make a decision on whether or not to take the children with you. If you do leave the house and take the children with you, make sure to file a petition for temporary custody with the family court as soon as possible. Otherwise, your spouse can file his or her own petition and claim that you took the children without his or her permission.
It is important to note that a judge will take many factors into consideration during a custody decision. If you can prove that your spouse cannot financially support your children, represents a danger to your children, or that you have always been the primary caregiver, then a judge is more likely to rule in your favor even if you are not living in the house.
If you feel unsafe in your home, leave immediately. If the situation is merely unpleasant, then consider seeking the representation of a divorce attorney before you make any major decisions. If you live in Orange County, contact Bohm Wildish for expert divorce support.