Divorce is an emotional event. It is not uncommon for decisions to be made in haste, anger and sadness. Very often, though, the decisions made in the midst of the haste and anger can significantly affect how a divorce will eventually be decided. One of these is the decision whether one spouse (usually the husband) will move out of the house. What you decide to do at the beginning of the divorce process can become a life changing decision for both you and your children, especially if you are going to petition the court for custody. Staying in the house with your children creates some very important precedents for the court to consider when making final, binding decisions regarding your life moving forward.
Moving out of the marital house is almost impulsively the first thing that one spouse does once a divorce is decided upon. After all, if one or both of you has decided that it is time for you to go different ways, why prolong the agony? Often this is when the husband typically expresses chivalry and becomes the one to move out, leaving the children and wife in the family home. There are several reasons why this might occur. It is often claimed to be “the right thing to do,” even though it is actually the wrong thing to do. Sometimes it is done in an effort to placate the wife, in the hopes (or with the promise) that things will be more amicable down the road. There may be times when relations in the house have become so tense that the decision to divorce is a welcome opportunity to dissipate the stress by physically separating.
Suppose that your spouse has threatened that unless you leave the house, she will make certain that you never see your children again. This threat is basically meaningless. Your spouse cannot take away your rights to see your children or share in their custody. No matter how much leaving may be what you want to do, or what your spouse demands you do, or what you think you should do, as long as staying in your home does not create a dangerous situation, you should stay put.
By moving out of the family house, any custody arguments by the husband will be weakened by his having left. This is not the time for chivalry, and it will actually not put you in the good graces of the court. In fact, quite the opposite may happen. In a divorce, your actions will speak volumes to the court about your priorities and character. Remember, in a divorce, chivalry is dead. You need to you stay for a number of reasons.
Pennsylvania courts no longer award custody of the children to their mother as a matter of course. The decision-making process became somewhat more objective, and certainly more equitable when, in 2011, Pennsylvania codified the legal standard for awarding child custody. In awarding child custody, the court must base its decision on 15 different standards related to the children. These include: the parental duties performed by each party on behalf of the children; continued stability and continuity in the children’s education, family life and community life; which parent is more likely to attend to the children’s physical, emotional, developmental, educational and special needs and maintain a nurturing relationship for those needs; and each party’s availability to care for the children.
Therefore, in hearing your divorce petition, the court will look at how the children have been functioning in whatever living and/or visiting arrangement you and your wife have set up. If you continue to live with the children, you will be able to show the court that you continue to provide for their needs. By staying in the house, the court will see that you are involved with your children and are a hands-on dad. You can show that you have provided the stability and continuity in their lives by alleviating them of the back-and-forth visitation so typical when one parent moves out. The children can continue their activities in their school and social groups with minimal disruption thanks to your decision to stay. Furthermore, you will have remained available to care for the children and attend to their daily physical, emotional, developmental, educational and special needs.
For all these reasons and more, you need to remain involved in your children’s lives and stay relevant in their daily routine. Once you move out and start seeing the children for reduced periods of time, your wife has a much stronger argument that she should become the primary custodian of the children. She can argue that she has always been the parent who has tended to the children’s various needs and has continued to care for them during this traumatic transition period. So by moving out “until things get settled,” you may run the risk of being viewed as a parent who does not keep the children’s best interests as your priority, even if that is the complete opposite of your intentions when you moved.
This element of separation is compounded by the issue of time. A divorce proceeding is not necessarily a quick process. If you move out and let your spouse take care of the children, with you visiting under some type of visitation schedule, this will be the situation during the entire period that the divorce is working its way through the courts. This means that by the time the judge hears the divorce petition, you have been removed from your children’s daily lives for weeks, if not months. It can be argued that whatever the “temporary” arrangement has been is the new normal. If it appears that the children are settled into the new visitation/custody agreement that has evolved and become established over the preceding months (which involves the children in the house with their mother) the courts may be less likely to award you custody and upend the children’s lives all over again.
In determining custody, the court will also look at the residences of both you and your wife. Chances are if you have moved out, you have moved into a smaller home than the one you shared with your wife and children. Maybe it’s just a small apartment because that was what the budget could handle with the family still living in the house. Maybe you consider it a temporary residence. However, when the court considers where the children would best be situated, your apartment may look insufficient for the children’s daily needs.
The most important thing to remember is that, if the house was bought by both you and your spouse during the marriage, it still belongs to both of you. Your spouse does not have the right to force you out of your home, and you should not let yourself feel pressured to leave. Your spouse cannot keep you out of the house without a court order giving her exclusive occupancy. If you have already moved out, but no court actions have started, move back in. She doesn’t have a right to have the locks changed; if she has, and won’t let you in, ask your local law enforcement agency for their assistance. As long as there is not a court order prohibiting your presence on the property and providing that you do not create a disturbance while re-entering the property, you have every right to be there.