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Roger, Attorney
Category: Family Law
Satisfied Customers: 31672
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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My wife voluntarily left our house and is getting an apartment.

Customer Question

My wife voluntarily left our house and is getting an apartment. I begged her to stay and said we can work it out. Can I get full custody of my kids in Delaware?
Submitted: 2 years ago.
Category: Family Law
Expert:  Roger replied 2 years ago.
Hi - my name is ***** ***** I'll be glad to assist. Obtaining full custody is very difficult and not probable unless there is good cause to prohibit the mother from having some type of custody......and the fact she moved out - in and of itself - is not enough to guaranty you full custody.
Expert:  Roger replied 2 years ago.
There would likely need to be proof that the mother has totally abandoned the child and has no intent to maintain a relationship with the child in order to make full custody more likely.
Customer: replied 2 years ago.
She signed lease with apartment and is prob with another guy. She wants to split custody although we're not divorced. What if I can prove she's cheating and has a guy over at her apartment?
Customer: replied 2 years ago.
If I can keep kids at house full time, will that help gaining full custody?
Expert:  Roger replied 2 years ago.
The court is ultimately going to do whatever is in the child's best interest......and that would likely be to grant joint custody (with a primary parent) and visitstion to the non-primary parent.
Customer: replied 2 years ago.
So if I stayed in their house and she moved to apt, would I get to be the primary and her visitation?
Customer: replied 2 years ago.
Stayed in our main home I mean.
Expert:  Roger replied 2 years ago.
Being able to keep the children full time could certainly help you gain primary custody.
Customer: replied 2 years ago.
How do I prove to court that they're in house full time?
Expert:  Roger replied 2 years ago.
You can testify to that fact.....and so can the children.
Customer: replied 2 years ago.
The children are only 7 and 4. Would proving her infidelity have any impact on alimony, child support, etc? How would it be advantageous me as the husband or are there no repercussions for just up and leaving your husband due to affair?
Expert:  Roger replied 2 years ago.
The judge can still speak with the children (probably in chambers /in judge's office instead of in the courtroom) about their preference. Also, her infidelity would not impact child support......but it could impact alimony if she's shown to be at fault. Her moving out and leaving for someone else should help you with gaining custody and with alimony, BUT it isn't likely to result in her losing all custody rights.
Customer: replied 2 years ago.
I know her phone texts will prove that's she's cheated and is cheating, but I can't access them. What else can I do?
Customer: replied 2 years ago.
Or is it even worth it since she only makes a little more than I do.
Expert:  Roger replied 2 years ago.
You can issue a subpoena duces tecum to her cell phone provider and get the messages. You can issue a subpoena through the divorce case.
Customer: replied 2 years ago.
Great. So is it more beneficial for me to file for divorce or if she does it? Or does that matter?
Expert:  Roger replied 2 years ago.
It's usually better for the person who files in the long run because you are able to control the action more.
Customer: replied 1 year ago.
Another question, is a subpoena duces tecum that exposes provocative info and looks like sexual activity was involved through texting valid to prove an affair and if not, what's the best way to prove affair in court without getting into bedroom? Also, do I have to file for divorce to get subpoena duces tecum or could I file it against her or her boyfriend based on any reason?

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