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AttyHeather, Lawyer
Category: Family Law
Satisfied Customers: 677
Experience:  Attorney with 15 years experience
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My husband and I have Physical custody but joint legal

Customer Question

My husband and I have Physical custody but joint legal custody with both parents over my niece. So just my husband and I on the physical custody but all four on the legal custody. This was done amicably from all sides. Now her mother and father are separated (not yet legally) but my husband and I are moving and would like to the mother to take her daughter back. Her father is not in agreement with their living situation (she is living with her boyfriend and his kids). We are set to go to court but can we leave my neice with her mother since we all have joint legal custody when we move? Can she stay with her mother in the meantime before we go to court or does she have to stay with us? Even though we all share legal custody? We'd like to take ourselves off of legal custody altogether. Would this be diffficult now that the parents are not amicable with each other?
Submitted: 9 months ago.
Category: Family Law
Customer: replied 9 months ago.
This is for Virginia if that helps.
Expert:  AttyHeather replied 9 months ago.

Hi! I'm Heather. I've been a practicing attorney for the last 15 years, and I'd be happy to assist you for informational and educational purposes.

Expert:  AttyHeather replied 9 months ago.

Is this for a guardianship?

Customer: replied 9 months ago.
No... my husband and I have physical custody but joint legal custody of my niece. We want to give physical custody back to her mother but the father won't agree to it. Can I let my niece physically stay with her mother until we go to court? We're moving and I want to give up our custody altogether.
Expert:  AttyHeather replied 9 months ago.

It sounds like you are not the parent at all? Normally that is done as a guardianship. To help, I need to know how you got custody when you are not the parent.

Customer: replied 9 months ago.
No we are the aunt and uncle. We all signed a custody agreement which went to the juvenile court. All four of us with legal custody. Myself and husband with physical custody.
Expert:  AttyHeather replied 9 months ago.

So was the state involved, because it was an abuse/neglect type case?

Customer: replied 9 months ago.
No. it was a mutual agreement.
Customer: replied 9 months ago.
They could not financially support her at the time. Now her mother works a full time job and can support her.
Expert:  AttyHeather replied 9 months ago.

IF it was just mutual agreement, then you are free to relinquish custody to her. When it goes back to court, if the parents do not agree on her being the custodial parent, she might or might not be awarded custody. Until she gets a court order awarding her custody, she'll be on shaky footing, because she doesn't have physical custody until the court orders it.

Customer: replied 9 months ago.
Do we need to do anything to relinquish custody to the mother before going to court?
Customer: replied 9 months ago.
Also, if we relinquish custody would there be a possbiltiy of the judge ordering us to maintain physical custody until their disagreements are settled?
Expert:  AttyHeather replied 9 months ago.

Whatever you do won't really be official. You can sign a paper you prepare that states you are relinquishing physical custody to the mother, and that might help her if she has any problems after you leave.

The judge wouldn't order you to keep physical custody if you don't want it anymore. The thing is, if a person says I don't want custody, then it would be bad for the child to stay with that person, so the judge is risking the child's well-being. Does that make sense?

Customer: replied 9 months ago.
my husband and I would not be penalized for letting the child stay with her mother (at her boyfriends with his kids) when we had physical custody? I trust her mother and believe she will take care of her daughter. Her daughter is happier with her mother than with us anyway. I just don't want to be breaking any 'rules'.
Expert:  AttyHeather replied 9 months ago.

I don't see how you could be penalized. People relinquish custody all the time. If you decided later that you wanted to step back in and get custody, and you decided that the mom was not good, you would not automatically be entitled to custody, but that's the only way I see that you would be "penalized."