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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1610
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I was married for 6 years in NC. About 14 months ago, my wife

Customer Question

I was married for 6 years in NC. About 14 months ago, my wife left me for another man.

I assume that they were having an affair a few months before we actually split-up. Which was 5 days before Christmas 2011. We have a 6 year old daughter between us. When I was asked to move out, she agreed to let me take my daughter with me so long as I promised to bring her back by Christmas Eve. My daughter and I stayed with my mother in Newport News, VA for those 5 days. And as agreed, I brought my daughter back on Christmas Eve. At the time, I had hopes of reconciling things between us since it was the holidays. My wife refused to talk about it, and told me to go back to VA. I had no where else to go at the time.

On New Years Day 2012, I called to speak to my daughter. I was then informed that my wife had already moved a new man into the home. In fact, he moved in Christmas Eve right after I left. I later found out he left "his" wife to move in with mine. He's still married too.

I begged my wife to let me come back to NC and pick my daughter back up and bring her back with me to VA. She agreed on the condition that I brought her back by her B-Day on the 18th of January. As promised I brought back. In fact, I brought her a back on the 17th so she could have a B-Day party on the 18th.

A few weeks later, I came back to NC and found a place to live about 10 miles away. I didn't have the money to hire an attorney at the time, so we never filed for divorce or even filed for an official separation. My focus was really centered around being a Dad to my daughter. We agreed that we were going to get divorced (eventually) Her only stipulation was that we kept the courts out of it when it came to how we handled arrangements with our daughter. We verbally agreed to 50/50 shared custody. Her exact words were "so long as I didn't give her a reason not to... she would keep to that agreement". Our daughter was to be with me on Tuesdays,Thursdays, and and every other weekend.

The agreement, for the most part, worked for next few months into the Summer.

Her boyfriend made more money me. My wife eventually quit her job and basically became dependent on his income. Then he suddenly quits his job and sought work outside of the State of NC. He landed a job in Ohio. They didn't tell me until about 2 weeks before they left that they were moving and taking my daughter with them. She left 2 kids from a previous marriage behind in NC with their Dad.

I was faced with the choice of moving along also... or starting World War III with her. Since I worked online and can basically earn a living anywhere. I chose to keep the peace and relocate to Ohio also. I did this for my daughter. July 2012, we were all living in OH.

I never caused problems between them. My main focus has always been for my daughter. When Summer ended, my daughter started Kindergarten. I picked her up every Tuesday,Thursday and every other weekend. They provided the medical Insurance for my daughter, but I paid her premiums directly to them. Anytime they needed money for whatever reason, I offered to give it to them and just asked that they spend it on my daughter, instead of paying me back.

Through all of this I have done my best to be peaceful and cooperative.

By Christmas, the 1 year separation had passed, and I was considering filing for a divorce in the State of Ohio. They seemed to be OK with it... so long as I agreed to keep our daughter out of it and dealt with her outside of the courts.

January 2013, her boyfriend loses his job (again). Early February 2013 they inform me (2 weeks ago) that they were now moving to Florida. She used her Tax Return to finance the move. Only this time, they she tells me that someone from IRS called her wanting to locate me because I didn't file my tax return last year. I panicked and moved back to NC to stay with family and deal with my tax situation. I come to find out that they were not "looking for me", but of course, I still need to sort out my tax situation. Meanwhile, my wife moved to FL, taking my daughter with her.

I realize that I set myself up for this. I knew that I could have taken legal action anywhere along the way to protect my rights as a Father. It's just that I have seen so many men go through a divorce and pay dearly... only to end up with 4 days a month with their kids. I had 50/50 with my daughter up until now.

I plan to move to Florida as soon as I get my taxes filed for 2011 and 2012. They say that they plan to file for divorce right away. He says she has a lawyer. I thought they had to be a resident for 6 months. We have been separated plenty long enough, but aren't there residency requirements? I'm fine with divorce. I'm just torn on what to do about my daughter. My wife has made it clear that if I bring our daughter into the courts, she'll take everything away from me. No more 50/50. Do I have a chance of getting 50/50 through the courts?
Submitted: 1 year ago.
Category: Family Law
Expert:  Steven K. replied 1 year ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

To file for divorce in Florida, one party must be a resident of the state for at least six months prior to filing.

Steven Kincaid :

One can file for legal separation before that though.

Steven Kincaid :

It is impossible to have a divorce finalized without the court making orders regarding the children. The orders can be vague but the divorce judgment must specify the form of custody and visitation that the parents will have.

Customer:

All the research I have done online indicates that there is a 6 month residency requirement. They say that since we have been separated, although unofficially, it's been long enough to file for divorce because it will be an 'uncontested divorce" This is what confused me about what they are trying to do. I'm also assuming that since I left NC, and resided in OH for the time that I did, I can't even file for divorce here in NC for another 6 months as well.

Steven Kincaid :

The separation period and the residency requirement are two separate issues. One of you must be a resident for six months. However, because the two of you agree to divorce, you don't have to wait longer than that.

Steven Kincaid :

North Carolina also has a six month residency requirement as you state. Not all states do but both Florida and North Carolina do, so yes, you would have to wait.

Customer:

I just want to make the 50/50 shared arrangement we've had 'official' by the courts. Will the way we've handled it so far as my daughter is concerned be taken into consideration. I just don't want to end up being left with seeing my daughter 4 days a month. Plus, I'm tired of moving all over the country. How can stop her from moving whenever they feel like it?

Steven Kincaid :

Every state in the country makes custody and visitation orders based on the child's best interests. Each state, however, considers different factors in determining what is in a child's best interests. Assuming that the case proceeds in Florida, the following factors are considered in determining child custody and visitation:



  • Each parent's willingness to encourage and support a relationship between the child and the other parent, to honor a time-sharing schedule, and to be reasonable when changes occur

  • Each parent's ability to respond to the child's needs as opposed his/her own needs

  • The mental, physical, and emotional health of the parents

  • The stability of the child's home environment

  • Any history of domestic violence, sexual violence, child abuse, child abandonment, or child neglect

  • The child's wishes, if the court deems the child to be of a sufficient age, intelligence, understanding and experience (generally age 12 or older)

  • Each parent's ability to be involved with the child's school and extracurricular activities

Steven Kincaid :

The fact that you have been sharing your child equally can be considered with regard to the stability of the child's home environment.

Steven Kincaid :

If the two of you can agree to a 50/50 plan, the Court will probably accept it, although it sounds like she does not want that to be part of a court order.

Steven Kincaid :

If you had 50/50 custody, it would be difficult for her to relocate in the future, but even if she were granted primary custody, it would be difficult to relocate again unless you consented.



In Florida, a custodial parent who wants to move with the child more than 50 miles away, for any period longer than 60 days, must notify the other parent before moving. If the noncustodial parent agrees to the move, the parents must file a written agreement with the court. If the parents can’t agree, the judge will hold a hearing and decide whether to allow the move. If the court views the move as negatively impacting the children or their relationship with the other parent, the judge may not approve the relocation.

Steven Kincaid :

Do you have any additional questions?

Customer:

I'm glad to learn that! Atleast I'll then have a little more time to react. Seems like there is very little I can do here in NC. I think since there is indeed a 6 month residency requirement in Fl for a divorce I'll have a little more time to prepare.

Customer:

One more question please?

Customer:

When I get to Florida will I be able to get the visitation and custody process started right away?

Steven Kincaid :

You could file legal separation before the six months is up and get temporary orders for custody/visitation if you needed to. But if she'll give you 50/50 voluntarily, it might be better for you to wait so that the "status quo" at the time of the court case is equal custody.

Customer:

That makes sense. Thank you so much for your time and assistance. You have helped put my mind at ease. God Bless you.

Steven Kincaid :

So glad to help!

Steven Kincaid :

If you have no further questions, I would appreciate if you could rate and accept my answer so I get credit for my work. Thank you!

Customer:

Doing that now.. Good night Sir.

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1610
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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