Family Law Questions? Ask a Family Lawyer Online.
Hi - my name is ***** ***** I'll be glad to assist.
How old is your son?
Yes, I'm here.
If the court awards you custody (physical and legal), then you'd be the primary parent for the child and you'd be able to ask the court to limit the father's access and visitation to the child given his mental health issues.
In the event that something were to happen to you before your son is an adult, the father could be granted custody of the child unless the court didn't believe that he was capable/qualified........
In that case, the court would have to find a guardian or next of kin (grandparent, aunt, uncle, etc.) to place the child with. If you're concerned about this issue, you could draft a will and name a guardian for your son in the event that you pass away before your son reaches the age of majority.
If the father has not been diagnosed with a mental health condition, then that's what you'd have to do first.....you'd have to ask the judge to order him to submit to psychological testing and get an opinion from a court-appointed mental health professional to determine whether he's got clinically diagnosable issues.
In regard to taking the child out of the country, the judge in the divorce proceeding can prohibit the father from taking the child out of the country without your written consent. Also, the judge can order that the child's passport be signed off by both parents any time he's going to be leaving the county.
If you cannot agree to the terms of divorce -- who gets custody, child support, etc. -- then you could spend thousands of dollars to get to the end. I've had divorces that cost less than $2000 and some that have racked up over $10,000 in legal fees. It all depends on how much fighting you have to do.
USUALLY, a judge is going to award joint custody between the parents, but one parent will be the primary parent (the parent the child lives with the majority of the time) and the other will have visitation rights. That will be determined by who the judge believes can do the best for the child and tend to the needs of the child. In deciding this, the judge will look at the character of the parents, the home environment, any history of mental illness, substance/drug abuse, etc. of both parents.
If you are concerned that your husband is not fit to have physical custody of the child if you were to pass away before he reaches adulthood, then you really need to try and establish his mental health issues now.......in this divorce......and then establish a guardian in your will.
If you don't establish that he has clinically diagnosable mental health issues now, then if you were to pass away, the father would be the default choice to take over physical custody of the child.......leaving your family members a tough up-hill battle to take custody away from the father.
Thus, your best option with this would be to allege in the divorce papers that he has a mental health issue, ask the court to order him to submit to court approved testing for a diagnosis, and then to award custody to you in the event that he does have a diagnosable mental health condition.
That will lay the ground work for you to seek custody now......and it would also assist in establishing a basis to appoint a guardian (as outlined your will) to care for the child until he reaches adulthood.
Please let me know if you need anything further. Thanks!