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SHOULD I MOVE OUT OF MY HOME?

Deciding whether or not to move out of your home is one of the most important decisions you are ever going to make with respect to the permanent custody award and the visitation schedule. It is critical that you get good advice when you are making this decision.

For example, if you move out because you are afraid of your spouse who has been violent or angry and you feel that it is not in the best interest of the children to be exposed to this conflict, you are making a statement that it is okay for your children to be with this abusive person, but not you. The abusive spouse will then be able to make the case that by your action, you have basically admitted that the children are safe with him.

One of the critical events is for you to get a domestic violence restraining order. In California, it is a presumption that an abusive spouse is not entitled to custody because he is abusive. If you move out, you have given your spouse the opportunity to rebut that presumption because you have left the children with him. You should definitely never leave the house without the children if you are the abused spouse.

If you are the spouse that is being accused of being abusive, you should never leave the home under any circumstances unless you are seriously afraid that your spouse is going to falsely accuse you of domestic violence and you will end up in jail. You have to be the one to take action first. You should tell the court that there is always conflict in the home and that you do not want to leave your home but need an order that your wife cannot disparage you in front of the children, throw pots at you, or lock you out of the house. You should make the case to the court that there is violence in the home, but you are not leaving because you are there to protect the children. You do not want to create an unfavorable status quo because you will no longer have 100% access to your children and will have to wait for a court to decide what access you have.

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