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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11317
Experience:  Licensed Texas General Practice Attorney
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My question is a bit complicated. Im NOT legally married,

Resolved Question:

My question is a bit complicated. I'm NOT legally married, we just had a ceremony but never got legally married. My husband has four kids from two previous marriages. He has one child with me -- 18 months old. I have been claiming Florida domicile for the past three years. Prior to that I was living in Massachusetts. I've been living in Maryland for the past three months with the baby's father. I would like to move back to Massachusetts ultimately if things do not work out between the two of us. I want SOLE physical custody. I do not want my husband to have visitation. I do not need child support. Could you please let me know the following:
1) What are my chances of gaining full custody? Since we are not legally married.
2) What state is it best to claim I'm living in?
3) Should I change my paystubs to reflect that state? Currently my license, car and paystubs are linked to my partner's mother's address in Florida....could this jeopardize my custody.
Submitted: 1 year ago.
Category: Family Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Where has the baby lived?

ScottyMacEsq :

(for the past 6-12 months, that is?)

ScottyMacEsq :

Did you see my follow up question to your issue?

ScottyMacEsq :

I will assume that the child has lived with you for the past 3 months in Maryland, and Florida for the time before that...

ScottyMacEsq :

To determine which state has proper jurisdiction to make an "initial determination" of child custody, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) proceeds in the following order of priority:


1. The state which is the "home state" of the child, or was the child's home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;


2. If no state has jurisdiction under #1, then jurisdiction is proper where the child and at least one parent have a significant connection with the state (other than mere presence), and substantial evidence concerning the custody determination is available in the state;


3. If no state has jurisdiction under #1 or #2 above, jurisdiction is proper in any state having an appropriate connection with the child.


A state having jurisdiction under #1 or #2 above may decline to exercise its jurisdiction, and transfer it to another state if it is more convenient for the parties, or if one of the parties has engaged in misconduct necessitating a change.


"Home state" is defined as the "state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period."

ScottyMacEsq :

Since the child has not lived in Maryland for at least 6 months, then Florida would be the only place that you could bring this case.

ScottyMacEsq :

(until the child has lived in Maryland for 6 months, at which time Maryland would be the only state you could bring such a case).

ScottyMacEsq :

As for your chances of gaining full custody, it's far more likely that you will gain full legal custody than "full custody" (meaning that you can have the sole option to determine medical, religious, schooling, etc... decisions) but not full possessory custody.

ScottyMacEsq :

Only if you could show that the father was an unfit parent and poses a significant risk of harm to the child could you limit or eliminate his visitation rights. Visitation rights are just that: Rights of the non-custodial parent.

ScottyMacEsq :

It's highly unlikely that a judge would actually do that absent a showing of material harm or risk of material harm.

ScottyMacEsq :

As for changing everything, that's up to you and where you want to bring the case.

ScottyMacEsq :

Again, you have to be in Maryland at least 6 months.

ScottyMacEsq :

(the child does, that is)

ScottyMacEsq :

It doesn't require that you change all your documents, but rather that you establish residence (residing with intent to stay indefinitely).

ScottyMacEsq :

Assuming you can show this (even testimony to this fact would be sufficient if not rebutted) then that would be fine.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Scott,

ScottyMacEsq :

Yes, I am here.

Customer:

Scott, the baby and I were actually living in MA / FL for the first 15 months of the baby's life. Only the past 2 months has been in MD. I would like to know if being NOT legally married to the baby's father changes anything in terms of custody rights? Does it help me at all? His name is XXXXX XXXXX birth certificate, by the way. Also just to clarify...is it bad to have the father's mother's home on my work pay stubs, drivers license or does this have no bearing?

ScottyMacEsq :

I realize that, and that's what I based this answer on (in that you can't now file for custody in MD, but can if the baby has lived there for 6 months). Not legally being married has absolutely zero basis as to the father's rights. That is, while these issues are often dealt with in the same divorce proceeding, they are independent of each other. Now there is a presumption that a young child is better off with his or her mother, but marriage does not come into play and is not considered.

ScottyMacEsq :

And it's not bad to have those things on your stubs.

ScottyMacEsq :

Again, those things are not necessarily considered as to where you reside.

ScottyMacEsq :

So long as you can show that you have moved with the intent to remain in your new location indefinitely, whatever that proof, then that would suffice for the UCCJEA.

ScottyMacEsq :

If you think that the father is not going to file in the next four months, I would suggest waiting so that you can file in MD.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Why would I want to file in MD? I only moved here because of my partner ("husband's") work. I don't like it here and want to ultimately be in MA.

Customer:

If I don't move back to MA before filing for custody...could I end up getting stuck in MD...could the judge say since I've been living in MD I can't take my child out of the state.?

ScottyMacEsq :

I see. My apologies.

ScottyMacEsq :

That's correct.

ScottyMacEsq :

Again, if you do move and your partner files within 6 months in MD, that IS where the case is going to be.

ScottyMacEsq :

But if you can move and stay in MA without your partner filing for at least 6 months, then you could maintain that case in MA.

Customer:

Wherever the case is held is the state where the child MUST reside?

ScottyMacEsq :

No. It's up to the court to decide that.

ScottyMacEsq :

So it's possible that the MD court would say that MA could be where the child stays.

Customer:

What do they base it on?

ScottyMacEsq :

The standard is "the best interests of the child". They will look at opportunities for the child, family presence in either state, educational opportunities, etc...

ScottyMacEsq :

And to be honest, ever judge is different as to what factors they weigh more heavily than others.

Customer:

Excellent. Thank you.

ScottyMacEsq :

My pleasure. If you have any other questions, please let me know. If not, and you have not yet, please rate this answer either a 3, 4, or 5 (good or better). Please note that I do not get any credit for this answer unless and until you rate it that way. Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 11317
Experience: Licensed Texas General Practice Attorney
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