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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 111527
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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I want to leave my husband. I have two children that I want

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I want to leave my husband. I have two children that I want to go with me. He says he wont allow me to take the kids and will bring me up on charges of abandonment. I am not romantically involved but have shared with my controlling husband of 13 years that I have feelings for someone else. Can he get me for abandonment? I can't bare being sep. from my kids long-term?
Submitted: 6 years ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 6 years ago.
He CANNOT prevent you from taking the children without a court order. It is also not abandonment if you leave the marital home in preparation for divorce. Abandonment is when someone just leaves without the intent to seek divorce and is gone for more than a year with no intent to return. He is bluffing and angry. You can, unless there is a court order to the contrary, pack up with the children and leave if you like and there is no law stopping you. What you need to do, since he is acting this way now, is before you do anything else go sit with a local family law attorney and get the divorce papers prepared along with a temporary custody motion and temporary support motion and then the attorney will instruct you as to when you can move out with the least problem and take the children with you.

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Customer: replied 6 years ago.
Does him having knowledge that I have romantic feelings for someone else cause me any problems?
Expert:  Law Educator, Esq. replied 6 years ago.
If you have committed actual adultery, not merely having feelings for someone else, then this could be grounds for him to obtain an immediate divorce and could have an impact on the property settlement and may have some impact on any custody hearing. However, his assertions about abandonment are not going to be sustainable at this point.
Customer: replied 6 years ago.
Lastly, I am not concerned about any property settlement, only the custody of the children. He may have acquired text and emails where it could be substantiated that I have had an affair. I have not, but the text that I have sent could indicate that an affair has happened. The person I care about is willing to wait moving forward and I am able to take care of myself financially. I just don't wont to lose my children. Just for peace of mind, could he take my children over this?
Expert:  Law Educator, Esq. replied 6 years ago.
He could try, but generally this is not sufficient to obtain sole custody. The courts prefer joint custody or shared custody (50-50 physical custody) in situations where appropriate and they are hesitant to award sole custody unless it can be proved that the parents cannot work together when it comes to the best interests of the children or if a parent can prove the other parent is not capable or competent to care for the children. Just because someone had an affair does not automatically preclude them from having custody.
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