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Family Law Answers, Family Law Attorney
Category: Family Law
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Experience:  more than 16 years experience as an attorney - current family law litigation + mediation practice
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My husband and I are living apart but not legally separated.

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My husband and I are living apart but not legally separated. However, we have both been living in other relationships for the last 6 months.   We have a 3 year old daughter. We live in Utah.

He has always been verbally and emotionally abusive, and has used her as a weapon against me since I got pregnant.

Now that his extra-marital relationship has dissolved, he won't work, and he moved in with his parents and they have decided to take our daughter from me. They threatened to take her if I change my work schedule because I would have her on days they want her. They say I won't get to see her if I do that. He won't just go divorce me.

I can't afford a lawyer, and they are making my life miserable with the constant terrorizing me over losing my daughter.   I haven't done anything horrible... I was a drug addict, but I've been sober for 5 years, I have a steady job, and I am a good mom. I have OCD and depression, and am bisexual. Could I lose her over that?

Hi and thanks for your question.


First, you are not required to have an attorney representing you in obtaining a divorce -- you can do it yourself. In fact, Utah has a program where if you have less than 6 children and you and your husband's combined monthly income is less than $10,100, then you can use the court assistance program to help you with your divorce.


Here is the court website link -- scroll down a bit and click on "Court Assistance Program" - this should be very helpful to you.



Second, your husband doesn't have to agree to divorce you for you to get a divorce. You can file all of the paperwork to get the process started and if he doesn't participate in the process or show up to court, then he could be found in default by the courts and you would still be granted a divorce.


With respect to your child, your history should be irrelevant unless your husband can somehow use it against you in your present situation (for example, if he were going to argue that you use drugs now, then he has a better chance of being able to use your past against you to support his claim that you are using now). Since you have been sober for 5 years, have a steady job and are a good mom now, then that's what the court should focus on in deciding custody of your daughter.


Your sexual orientation, OCD and depression should have nothing to do with the court's decision on custody, so long as it doesn't affect your daughter's safety, well-being or best interest. If your sexual orientation, OCD or depression are somehow harmful to your daughter, then that may be relevant, but from your post above, it doesn't sound like this is the case. If he were to argue this was the case, then you would have a strong argument that if his allegations were true, if he's so concerned about your daughter's safety now all of a sudden, then why would he have let you be alone with and care for her at any time? It sounds like you were sober for at least 2 years before your daughter was born, so you would have a strong argument that this has never affected your daughter.


I hope that this answers your question; if so, please click Accept. Thanks very much and I wish you the best here.


Customer: replied 7 years ago.
Is the fact that I am currently living with someone else and in a relationship with him a factor? I am not sure if that should be a concern, since he, in fact, moved a woman into our home almost a year and a half ago.

I do not want to take her away from him, and would like for her to have continued access to him. I only want to see her. Is that going to be taken into consideration if he tries to take her from me?

And one more question. He claims that because I am working, he should be allowed to have her more often, and that the court would give him full custody because he is more available now that he is unemployed. However, I have a job and he is being supported by his parents. Am I going to be denied custody of my child because I work outside of my home? I was under the impression that being able to fully support myself and my child was a good thing. Will the court look at the fact that his parents pay for her and support him and consider that enough, or better?

The Utah court is supposed to consider what would be in the best interest of the child in determining custody. The Utah rule about whether a parent's sexual acitivities would affect custody is laid out in a case called Tucker v. Tucker, where the court said


"Utah courts have previously noted that a custodial parent's censurable extra-marital sexual activities do not in and of themselves make him or her an unfit and improper person to have custody. The parent's activities must be shown to run contrary to the child's best interests. . . . [T]he trial court must link the parent's extra-marital activity with a resulting inability to function adequately as the custodial parent and meet the child's needs. "


So, your new relationship would not mean you are unfit or improper to have custody UNLESS it is shown to be somehow contrary to your child's best interest by resulting in your inability to adequately function as a parent and meet your cihld's needs.


The fact that you are employed outside of the home would not be a reason for the court to deny you custody -- you are correct that being able to support yourself and your daughter is a good thing. The fact that he is being fully supported by his parents would be a negative in his column, not a positive. If he can't support even himself then how can he support his child?


I hope that this helps.

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