Legal Question in Family Law in California

Custody is not based on who has the house, though moving out without taking the kids raises questions unless there is domestic violence, and even then it's best to call the police rather than just leave, if that is safe to do. You have two choices, really. You can secretly find a new place to live and take the kids with you, then file. Or you can file and seek an immediate temporary order for sole posession of the house. You need to consult a local family law attorney about which option is best for you. But no matter which way you go, who leaves the house has pretty much zero bearing on who gets custody and how much time to each parent. The key to getting the best outcome in a custody fight is to be the one who is being the most reasonable and is always looking out for the best interests of the kids.

Residence exclusion orders in Family Law only occur when a party files a petition for a restraining order under the Domestic Violence Protection Act. With that said, however, it is not practical in a realistic sense for the parties to be cohabiting and getting divorced. One of you should move, as it clearly establishes a date of separation. Mr. McCormick is right, in that you can't lose your kids just because someone is, or is not, occupying the family residence.