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lwpat, Lawyer
Category: Family Law
Satisfied Customers: 25387
Experience:  Practicing family law attorney
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My husband whom I have been separated from for almost 2 years

Customer Question

My husband whom I have been separated from for almost 2 years took our 5 year old daughter during a visitation. He refused to return her to me after finding out I was seeing a convicted 2nd Statutory rape felon. He did 5 years for being sexually involved with a 15 year old. That was 8 years ago. He has never been alone with my children and he has never stayed over night with them or even at my residence. My husband took my daughter from her home town in Alabama to Kansas where he is stationed at. He filed for emergency custody. But it will not be signed till Tuesday. He left last night (Sunday). My boyfriend and I followed the law on seeing each other. Can my husband legally keep my daughter from me because of who I am dating
Submitted: 5 years ago.
Category: Family Law
Expert:  lwpat replied 5 years ago.
Thank you for your question and for using JA. Please click accept so I will receive credit from JA for my time.

Where did he file? What happened at the hearing?
Customer: replied 5 years ago.
He filed at talladega court house but there hasn't been a hearing I haven't even been served any papers. It just happened this past Friday. He didn't tell me he applied for custody till the court house was closed. And then he left with my daughter last night.
Expert:  lwpat replied 5 years ago.
Since there are no prior court orders and you are still married, he can take the child and keep her from you until such time as there is an order from the court. You can go to the courthouse and obtain a copy of the filing. Then you need to contact a local divorce attorney and file for divorce and custody. The judge will decide based on the best interest of the child. While I am sure that the background of your new paramour will come up, You will need to show that even with the association it is in the best interest of your child to stay with you. I don't see anything being signed Tuesday so you will have time to file a answer and appear in court. You do need an attorney to present your case. The fact that he is in the military and subject to deployment, etc. will need to be brought out. Good luck and please continue in this same thread if you have further questions and I will post some information on custody in a little while.
Customer: replied 5 years ago.
He can take her from her home from the state. So I can take her from his home and from his state?
Expert:  lwpat replied 5 years ago.
The parent with custody can deny contact with the other parent until there is a court order.
Expert:  lwpat replied 5 years ago.

Herr are some of the factors the judge will consider in deciding custody



Primary caregiver. There is a presumption that the party that has been the primary caregiver of the child should be awarded primary physical custody.

Drug Abuse. It is fairly standard for the judge to order that both parties take a hair strand drug test and submit it to the court. Parents who abuse drugs or alcohol will not be awarded custody.

Wishes of the child. The judge may take the wishes of the child into consideration. While this is just one element, the older the child the more weight the judge is likley to give to the child's wishes.

Past custody. Who has historically had custody of the child and has that party provided a safe and stable environment for the child.

Parental behavior. Has there been domestic violence, excessive use of alcohol, criminal convictions, parental kidnapping, or any behavior that endangered the child

Encourages a relationship with other parent. Which parent will best foster a relationship between the child and the other parent. Has one parent withheld visitation to “punish” the other parent or made derogatory comments about the other parent.

Home Environment. Which parent offers the child the best stable home environment. This includes who can best supervise the child at home, the living conditions, what other adults and children, especially siblings, are in the home, the neighborhood where the home is located, which parent will be able to better continue the same school and friends.

Employment. Which parent is better able to financially provide for the child. If the parent works, what arrangements are there for babysitters, day care, etc. Does one parent travel.

Relatives. Does one parent have relatives that have a close relationship with the child.

Health. Does the child or a parent have any health issues that would impact the decision on custody. Which parent normally makes doctor appointments and accompanies the child to those appointments.

Religion. Which parent will expose the child to spiritual guidance and growth.

Relationship with child: The love, affection and emotional ties between the parent and child. With which parent does the child bond more, spends more time with the child, bathes and puts a young child to bed, prepares the child's meals and to which parent does the child openly show signs of affection.

Character. The judge will have to evaluate in a short period of time the character of the parties and whether one parents morality and credibility makes them the best parent to award custody.


You will need sworn affidavits ready for court from friends and family

Customer: replied 5 years ago.
He can take our child away from her home away from her school away from her state and I havent received any papers on custody at all. Can I not go do the same thing to him that he did to me before he transfers her school
Expert:  lwpat replied 5 years ago.
You can go and get the child from anyone except from him. You need to concentrate on the court action.