Legal Question in Family Law in California

If there are no divorce or custody proceedings pending in California, you can legally take the child to NY. Whether that is a wise move, however, is far less clear. First off, it will require you to live in NY for whatever amount of time NY law requires in order to have jurisdiction over you. Since the spouse will not have moved with you, however, NY will not have jurisdiction over your spouse. There are laws that deal with that situation, and still allow a divorce to go through, but it is FAR more complicated and costly. In addition, if your spouse files in California, one of you will have to ask the other court to dismiss the case. Since you both lived in California, your spouse would have a good argument for cancelling the NY case. If he does so before the child has lived in NY long enough for NY to have jurisdiction over the child, the NY court would be required by law to dismiss the case and let California handle it.

If you file in California while your husband is still in jail, you will likely be granted sole legal and physical custody of your child since your husband is in jail. You can then move to New York and do not have to worry about jurisdiction issues in New York.