protecting parental rights

[withonel]

What is the name of your state? I live in CA, I'm asking for my sister who lives in NY.

My sister and husband have 2 girls (2 & 5), they've been living in NY since May 2002. They are semi-separated, nothing legal, he stays at their place with the girls when my sister works, he leaves when my sister is home. She wants to move back to Calif and is considering leaving the girls with their dad while she comes out to look for a job and gets settled. My parents and I are totally against her leaving the girls and feel she may be putting herself at risk for accusations of abandonment if she moves without them.
What are her risks and/or rights if there is no divorce, she comes here and then he either is jailed (he's had drug problems in the past) or he takes the girls somewhere and doesn't tell her where they are? Is there any way she can protect herself (legal separation w/custody agreement) before she leaves?

 

[VeronicaGia]

She can file for divorce and custody in NY. If she just up and leaves, he can file for divorce and custody in NY and possibly win. If he files, she will have to come back to NY for the court date. She would have to wait for six months to become a resident of CA.

Why would she want to eliminate the father/child relationship? She has no business doing that.

 

[withonel]

Well that's the whole issue; she doesn't want to end the father/child relationship but she doesn't want to be in NY either. When they moved to NY they were both working for the same theatre co, which also provided their daycare, car and housing. Last winter he started using drugs again, quit his job, bounced around the country and returned to NY in Jan/Feb. She's finally tired of his lies and wants to end the marriage, but she doesn't want to keep him from the girls.
Without him working she can't make it there alone, even with the extras from the job and we'd like to see her back here for the family support. My parents will give her & the girls a place to stay in Los Angeles as long as it takes to get back on her feet, but they'll only agree to him coming too with a time limit for him to start working and taking care of his family (she's 29 he's 41). She can get and keep a regular job with no problem, he has never been able to do that, and has no interest in staying with my parents. So she either stays in NY with him and the girls, or comes out with the girls and hopes he follows.
As all her family is out here, we obviously want her here. If he won't come, maybe she does need to stay there, but what I don't want is for her to come here and loose her kids in the process.
What if she files for divorce in NY, gets joint legal/physical custody with an order for the girls to come to CA within a specified period of time? Is that even remotely possilbe? Not my choice, because I don't trust him, but they aren't my kids or husband.

 

[VeronicaGia]

How does she plan on getting the kids back and forth from CA to NY? It is likely a judge will have order her to pay for all of it since she wants to move.

If she goes to a NY court and files for custody and then says "Oh by the way, I'm moving to CA" I don't know how a judge will react to that, in fact no one can tell you what a judge will or will not allow, order or enforce.

 

[djohnson]

Agreed and plus if she files for divorce and custody most times it is put in the decree that for her to move out of state with the kids she would have to have his approval. That is risky. Will he agree to go to CA? If she is tired of it and wants a divorce does she want him in CA? Who ever is the best for the kids ( and in this case it sounds like her) doesn't need to leave them there with him as it could be used against her either. She needs to figure out which is the best thing for her to do.