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RobertJDFL, Attorney
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My husband and I are seperated but legally still married. He

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My husband and I are seperated but legally still married. He lives in New York and I in California. We have text/ verbal arrangements and had lawyers but nothing was filed and we dropped the divorce due to working things out amicably. Now things are worse and I'm wondering what my rights are. Due to my job in the past, my child's father has had him in New York 60% of the time and I the rest. My son is starting school and my ex wants him in New York for that. I have my son now and my ex is threatening to fly from New York and not let me see him again. I agreed via text to my son being in New York for school this semester as my ex said he will move to California over Christmas break. Now that's not the case. Do I have to give my child back to my ex or can I legally keep him here an enroll in kindergarten in California. Regardless of text agreement because of his threats ?
Thank you for your question.
As you both have equal legal rights to custody of your son, yes, you can keep him with you and enroll him in kindergarten where you live. Text messages and emails are not legally binding court orders. The threat isn't the main issue -it's the fact that in a court of law, a judge would not have to follow such an informal agreement. This also means, however, if you were to give your son to your husband for a visit while he was in California, for example, and he then decided not to return your son to you and instead fly to New York with him, he would have every right to do so.

Alternatively, you or your husband may choose to file for divorce and seek temporary orders regarding custody and visitation. In making such decisions, the court does what it feels what is in the best interest of the child. They look at numerous factors - who the primary caregiver of the child has been, the ability of each parent to support the child, the relationship of the child to each parent, which parent is more likely to foster an open relationship and contact between the child and non-custodial parent, etc. Once court orders are established, then if either party violates them, the other party has recourse - they can go back to court and file for sanctions (a "motion for contempt") for that party's refusal to follow the terms spelled out by the court.
Customer: replied 4 years ago.
Thank you for your fast response.
I have been receiving numerous texts today from him saying I will never see him again and calling me awful names. I don't want to do anything illegal or put my son through this awful mess. My ex still refers to me as his wife (we've been seperated for 4 years) and will send me old pictures of us as a family. He showed up at my house waiting for me to get home to take my son. Via text he is supposed to go back to new York and start school. But with these threats I am scared him going could be the last time I see him for a while. I can provide for my son and want him here full time. I was waiting for my ex to move to California for a year. If I keep my son here and don't give him to my ex, can he have the cops here and say I'm kidnapping? Even though we are still technically married as we have text agreements? I am going to hire a lawyer but they require $4800 to start. I spent the day at my court in self help but it's so hard due to my ex being a new York resident and I in California. Scared to make decisions now that will hurt me long term. He has for the past 2 years have had my son in NY for 60% of the time. But no legal papers saying this agreement. I know this is a clusterf**k but I tried to be cordial due to his emotions. Now he's irate and I'm suffering.
Thank you for your reply.

No, it's not kidnapping. Because you both have equal legal rights to him as a child born of the marriage, you have the right to keep your son with you. That's why I said if he were to take him and bring him to NY, he could then turn around and say you aren't allowed to see him, because he has as much legal right to your son as you do. Now, if he had a court order that entitled him to visitation and you took your son and fled to another state to avoid him, well, that's a different story.

If he calls the police, in my experience all they will tell him is that without a court order, they cannot do anything, and it's a matter for the courts.

Text messages, phone calls, emails, etc. are not legally binding. A court order is legally binding, and I suspect he knows it given the fits it sounds like he is throwing.
Customer: replied 4 years ago.
Im sorry, after this im done. So there is nothing I need to do? wouldn't he technically be Primary Parent? We had started the divorce process 4 years ago but there is nothing filed with the courts and our case was dropped in 2011. I went there to get all my previous court records and they said we have none. The lawyer I spoke to said if my ex could prove my son has been in NY more, then he is under NY jurisdiction. I know he will show up at my house threatening me so I will need a temporary restraining order and I suppose temporary court order for custody until we can sign papers or agree amicably on terms? This will throw my ex over the edge as he still wants to be married and all I want is the divorce final and custody agreed upon. Just as you said, if he takes him to NY and keeps him, I can't do anything. Thank you for your response and I will not answer again. I will rate you as well for all of your prompt help and hope to see a new lawyer soon.
You certainly do not have to give your son over to your husband right now if that is not what you want to do. There is no primary or residential parent established by the court yet; you both have the same legal equal right to your son. While it is true that the court would likely take into consideration the fact that he has stayed with your husband the majority of the time, that is only one factor a court would consider when deciding issues of custody and what is in the best interest of the child. As far as divorce goes, even though your husband may wish to remain married, the court obviously cannot force a party who does not wish to remain married to continue to do so. Therefore, it seems clear that at some point you will have to go to court and get this taken care of.
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