Legal Question in Family Law in New York

Leaving wife - taking daughter

I am leaving my wife soon. She does

not know and if she found out, the

results would be unpredictable. I am

moving from New York to Texas.

I have a 2 year old daughter and a

13 year old daughter. The 13 yo

wants to go with me. I want to take

her. I do not like the way my wife

treats her but she is good with the 2

year old.

An attorney has told me that I

should take my 13 year old daughter

with me. He said: after I meet the

residency requirements in Texas I

should file for divorce/custody there.

I should not file papers in New York

before I leave. If she files here, I may

have to return and fight in court.

I have limited time and money for

this.

I received advice previously from a

different attorney who specialized in

collaborative divorce that I should not

take either child out of the marital

home. She also told me I don't

''qualify'' to get a divorce and should

just stay. (I am not doing that no

matter what.)

Should I take my daughter?


Asked on 2/26/09, 11:04 am

1 Answer from Attorneys
Michael Markowitz Michael A. Markowitz, PC

Re: Leaving wife - taking daughter

Believe it or not both attorneys are correct.

As to the first attorney, there is a residency requirement to apply for custody of a child. The child must be in the jurisdiction more than 6 months. Therefore, if you take the child to Texas, wait 6 months, you would be able to apply for custody of the child in Texas.

However, if during that 6 month period the wife applies for custody in NY - and petitions for a writ directing the child to be produced in Court - you would have to come to NY for the custody issue.

Divorce (the termination of the marriage) and custody are different issues. NY has jurisdiction to hear the divorce (assuming both you and wife lived in NY for over 1 year). However, NY is not a no-fault State. You need grounds to obtain a divorce in NY. Maybe that is why the second attorney stated that you don't qualify for a divorce.

Therefore, to answer your question concerning custody, you have to look at this situation in the eyes of both daughters. The 13 year old deserves to have a mother. The 2 year old deserves to have a father. Both children deserve each other. Maybe that is why the second attorney said that you should just stay (not necessarily in the house)in NY.

Mike.

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Answered on 2/26/09, 11:38 am


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