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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12235
Experience:  Attorney experienced in all aspects of family law
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My husband has filed for absolute divorce (alleging adultery)

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My husband has filed for absolute divorce (alleging adultery) and sole custody of our 3 minor children. He is in MD. The children and I are in GA where I have been taking refuge for about a month. I told my husband that I was going to house sit for a friend in Virginia (which he agreed to at first and then tried to take back). After spending the night at the friend's home, I drove to Georgia in an attempt to flee a situation that I deemed dangerous for myself and the children. On the way to Virginia he called and threatened to call the police if I did not return with the children. Because of marital issues our relationship had deteriorated and was verbally and mentally abusive. My husband belittled me and controlled me on every hand. He had established a pattern of flying into a fit of rage and spending hours talking to me about what he thinks about me and what he thinks that I should do. I felt that I needed to leave because I was fearful that the situation would escalate and he may become physically violent towards me. I'm not contesting the divorce but refuting the allegation of adultery, seeking child support and some type of custody that allows the both of us access to the children. He has been sole financial provider and I have been a homemaker for 11.5 years. He has a lawyer and I am attempting to work with someone pro-bono. He has not sent any financial support for myself or the children since I left.

I wanted to know is there any way I can get the custody situation moved to Georgia courts? I am working to establish stability and residency in the state of Georgia for myself and the children by (1)establishing a new church home, (2)enrolling them in school, (3)proactively seeking counseling, and (4)putting them in extracurricular activities such as football camp and cheerleading camp. I have allowed my husband to speak with the children on a regular basis but no physical access has happened because I am increasingly afraid of what his next action may be. What are the ramifications of leaving MD the way that I did and how do I put myself in a position to get the outcome that I desire-custody of the children, support for the children, and access to their father (because while we may never work, they deserve a relationship with their dad).
Submitted: 1 year ago.
Category: Family Law
Expert:  Brandon M. replied 1 year ago.

Brandon M. :

Hello there.

Brandon M. :

Hi, can you see this?

Customer:

Yes

Brandon M. :

Great. Thank you for your questions.

Brandon M. :

You said that you have been in Georgia for the last month. Just to be clear, you left MD with the kids a month ago and went straight to Georgia--you didn't stay anywhere else in between, correct?

Customer:

I told my husband that I was house sitting in Virginia for a week, but that was to get out. I drove there, spent the night and headed for Georgia during the early morning hours.

Brandon M. :

That makes sense. Thank you for that clarification.

Brandon M. :

You essentially had two questions--whether and how a custody case can be transferred from Maryland to Georgia, and what the ramifications might be of taking one's minor children out of state over the objection of the other parent. There is some bad news for you, but it's not all bad. Please allow me to explain:

Customer:

Okay...

Brandon M. :

I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, your situation is actually quite common and understandable, and the laws have developed to address this very situation. Both Georgia and Maryland have adopted what is called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). This is a uniform set of rules to address which court has jurisdiction when children have been relocated out of state. 40 years ago, a parent could take their children out of state to some place where the laws were favorable to their situation, declare the new state their home, and the parent left behind would be forced to try to chase their spouse and children across the country and litigate in a hostile court under its hostile laws. Under the UCCJEA, jurisdiction is determined based on the child's home state. A "home" state is not the same thing as a state of residence. When a child is moved out of state without the consent of one of the parents, the "home" state will be the state from which the child was moved for up to 6 months after the child leaves. Just as your husband could not take the children, fly them to Alaska, and file for custody there, you generally would not be able to do the same by moving them to Georgia or any other state in the country. Furthermore, the only state that would have jurisdiction would be the home state. So even if minor children are established into a new church home, enrolled in school, given counseling, put in extracurricular activities, etc., jurisdiction will remain with the state from which they moved for up to six months, and the only way to change to another state is with the consent of both parents. That's the bad news.

Customer:

WOW...

Brandon M. :

But it's not all bad. First, we have to distinguish between jurisdiction to determine custody and actually getting custody. Even if Maryland (or whatever the home state may be) has exclusive jurisdiction, there is no reason that the parent who moved the children couldn't get custody or an order to leave the state with the children from the home state. It's entirely possible that a Maryland court would approve the move out of state to Georgia. The catch is that the Maryland court gets to make that decision. So, to be clear, it's not that you can't win--it's just that the home state's court gets to decide. Second, if the court does permit the children to be relocated out of state, then jurisdiction can be moved to the new state over the objection of the remaining parent. So if a parent moves her children from Maryland to Georgia (or Florida, or Tennessee, or whatever...), she can still ask the Maryland court permission to approve the move. Jurisdiction could subsequently be moved to the new state because it would become the children's home state...

Brandon M. :

Third, a unilateral move out of state does not necessarily prejudice the parent who made the move. It needs to be explained to show that the intention wasn't malice toward the remaining parent, but as long as it didn't violate an existing custody order and it was done with the best interests of the children in mind, it will typically not adversely affect the parent who initiated the move...

Customer:

That's very discouraging. Is it likely that I will have to return the children? At the time of departure, no complaint was filed or court order pending. I have been warned that if I wanted out of the marriage there would be no time of separation and that divorce, the loss of financial support and assets, along with my children would be the result. I am to be "left alone to go crazy". I would say that my husband is making good on his promises and the law is in place to help him.

Brandon M. :

The matter is decided similar to if the parent didn't leave the state and asked permission before moving out. The only question for the court is what is best for the children. Sometimes, that means keeping them in state, and sometimes it means approving a move out of state.

Brandon M. :

There are really two ways to do it--(1) ask permission to move the kids first, or (2) shoot first and ask questions later but run the risk of the inconvenience of having to move the kids back.

Brandon M. :

Without knowing it, you chose the second of those options.

Brandon M. :

It doesn't mean that you're in trouble or that you will lose custody of the kids, but now you have to deal with the fact that the kids' father has filed for custody in Maryland.

Brandon M. :

Does that make sense?

Customer:

There was absolutely no malice, just an attempt to actually shield the children from the inevitable dysfunctional of a deteriorating relationship between the two of us. I just didn't think that the children should be subject to that nor was I willing to have an abandonment claim brought against me if I chose to exit the household without them. BotXXXXX XXXXXne is that it was hard for me to tell how this was going to end up and I would rather be safe than sorry. This is a tough situation.

Brandon M. :

Normally, that's how it goes. You mentioned that the home environment was pretty unhealthy, so you did what comes natural to a lot of people.

Brandon M. :

What I typically see in my practice is mom taking the kids and moving them to where she has family support. Occasionally, it's the father who attempts the move, but mom usually has a tighter relationship with the kids and less likely to be tied to her career.

Brandon M. :

But I have also seen plenty of circumstances where the court just lets mom keep the kids out of state. Sometimes the move makes sense for the kids, and sometimes not. It really has to be examined on a case by case basis.

Brandon M. :

I hope that's helpful. Did you have any other question?

Customer:

That's exactly the case here. All of my family is in Georgia. I came home to get the support I needed.

Customer:

I did have another question that opens up a whole other can of worms, is it okay if I move forward with it?

Brandon M. :

Obviously, there are limitations to what I can do in this format, but I'm glad to help with your new question if I can. If I could just confirm that your original questions were answered in a helpful way before we move on to a new set, that would help me know that we have this first part squared away.

Customer:

Yes, the answers you provided were very helpful. There are some parts of the law that I was not aware of the (the Uniform...). I learned recently about the "home" state and the option to legally request permission to move the children. Too little to late in that regard.

Brandon M. :

Thanks. Fire away with your new question.

Customer:

Okay, so...within the complaint my husband spoke of depression and my inability to care for the children or to retain sole custody. He claimed wild mood swings and erratic behavior. Of course all lies have a hint of validity. We moved to MD almost 3 years ago as a vibrant young family excited about the new things that the move would bring. It was on the heels of a promotion from my husband's job. When the stress of the new position hit, everything (myself and the children) took a back seat. Long story shorter...moving to MD for me meant the loss of all support systems-church family, friends and immediate family. I experienced severe culture shock and battled with depression, sought counsel (about 7 months) and was prescribed a 6-week, low dose med. All true. All factual. However within the complaint it reads as if I am falling apart at the seams and unable to function in any way and that it is because I stopped taking the medication that I am making "decisions that are emotional and adversely affect the children". Should I be trying to gather records from the counselor to strengthen my ability to refute his claims?

Customer:

Thanks for the link...

Brandon M. :

That's a strategy question that I can't ethically answer without actually undertaking representation, but please allow me to explain the law. First, a mental illness, including depression, is not relevant for purposes of child custody unless it affects the ability to parent. You can be depressed, bi-polar, schizophrenic, OCD, etc., but those diagnoses do not prevent someone from being a great parent. If there actually is erratic behavior and it affects the kids, it doesn't matter whether there is a clinical diagnosis attached to the behavior or not--it's the behavior that can affect the kids, not the diagnosis. I have had plenty of clients with some sort of mental illness, but it's only a problem if it's so bad that it interferes with their ability to parent. So the question is not whether a parent is depressed or needed counseling--the question is what the kids need. Frankly, most people suffer from mental illness at some juncture in their lives, and seeking counseling and medication when you need it shows that you can be trusted to address the problem in a responsible way.

As for medical records, they're usually privileged--meaning, the party levying the accusations typically cannot have access to them unless the other parent opens the door to them. This is where things start to get complicated, and where you will probably want to have an attorney work through a response with you. That said, typically, I would object to the claims altogether to the extent that they were based on a diagnosis and refute them to the extent that they were personal opinion. Hypothetically, it might be helpful to release medical/psychiatric records even if you don't have to do so--for example, disclosing the documents might make the other parent look like a foolish exaggerator or liar--but it really has to be examined on a case-by-case basis.

Customer:

Thanks. Very interesting. Lots to consider there. Last question (I think). How substantial is the claim of abuse on pending custody orders? I don't mean physically (the children and I have never been hit) but what part do the other facets of abuse (verbal, mental, control, manipulation of an unusual degree) play in determining a favorable outcome for me. Okay, simply, can stating that I fled an abusive situation help with the reasons behind the sudden/abrupt exit?

Brandon M. :

The court would consider a parent's reasons for leaving the state with her children. It's generally only a problem if done in violation of an existing custody order or with malicious intent.

Customer:

I see. Okay. Thank you so much for your help. Your answers have helped to shed some light on a seemingly dark situation. This is sure to be a long and difficult process but I think that I have a better understanding of how I should be going about the task of building my case. Thanks again for your clarity and insight.

Brandon M. :

My pleasure. Best of luck to you.

Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12235
Experience: Attorney experienced in all aspects of family law
Brandon M. and 4 other Family Law Specialists are ready to help you
Expert:  Brandon M. replied 12 months ago.
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