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Father beginning divorce process, wondering about mother's threat to move-away and about his chances for custody

Your Question:
I am married (5yrs in May)with 1 son (3yrs) and my wife is is 4 months pregnant with our next child, she has a daughter (12yrs) who lives with my wifes mother in Alabama. My wife is threatening to leave me and go to her Dads in [a city far away]. I want to know want legal rights I have. Can she take my son out of state without my consent? What would be my chances of gaining custody on my son and unborn child? I work as an engineer and have a good stable job. My wife does not work, but would have to go back to work to support herself. Would the fact that her daughter lives with my wifes mother out of state work in my favor? I need help as I have no family to ask for advice and have no idea what my legal rights are. Many thanks.

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My Answer:

Thanks for writing. In another email (not posted), you also told me that the mother hasn't done anything horrible as a parent, that the 12 year old is with the grandmother as a result of not taking her out of country for three years (with you and the mother), and that the mother lies alot and may have some mental issues.

I'm sorry to let you know that from what you describe, you have quite an uphill battle to secure sole custody.

By and large, the court will want to know the following issues when making a custody ruling:

  • Who has been the primary caretaker of the child(ren) prior to the separation? You admit that you've worked full-time, while mom stayed at home. So, even though you were being responsible and working to support your child, this puts you at a major disadvantage to get sole custody, or even a 50/50 ruling. Nice, eh?

  • Are both parents adequate parents? The court wants to be assured that a parent is within an "average or better" range. The court doesn't care so much about which parent is excellent vs average. You couldn't identify a single thing wrong with your wife, as a parent, so you can't convince a judge that she's unfit.

  • Which parent will support the child's relationship with the other parent? If the mother isn't threatening anything about removing you from the kid's life (i.e., although a move-away essentially does that), you don't really have any ground here.

  • Which parent can provide stability for the child? While you have a wonderful full-time job, your wife can argue that she'll have stability living with her father. And, the court can have you pay spousal and child support, to ensure the mother has enough money to care for the kids.

  • Any issues that threaten the welfare of the child(ren)? While mental health issues can be relevant, they're only relevant if they have an impact on raising a child. Frequent lying and histrionics aren't enough in themselves, until the time that you can convincingly quantify the damage done to the kid. Again, hard argument for you to make right now.

At this point, each of you has 100% authority to do whatever you want with your son. You're married, and you both have equal rights.

So, if the mother wants to take the kid out of state, she can. If she refuses to return, such is her perogative. If you want to go to that state, take your son, and return him to your home, you can do that too.

I think it's in your best interest to file papers and get a restraining order prohibiting either parent from removing the child from the state. If you can secure that, you keep your wife local, and you have greater time to build your case.

You have an additional challenge of not getting any court orders regarding the second child until she/he is born. So, what if mom leaves your son with you, and moves out of state and then gives birth there? Does the new state have jurisdiction of the new child? I don't know.

It's arguably not in the 3 year old's best interest to be separated from his little brother/sister, so that they can have a strong sibling bond. But, your wife has a huge advantage of deciding where the unborn baby will reside upon birth. And therefore she can influence that "sibling bond" factor.

You have a complex case. Ideally, you can mediate it and encourage your wife to stay local.

Or, given that you have no family local, perhaps you can mediate a 50/50 parenting plan while everyone moves to the city of mother's choice. Your skills are probably transferable. If you can negotiate a 50/50 settlement and agree to move to the new city, that's likely a better custody outcome for you than you may get in court (but of course, anything can happen in court), and it could be far less costly than dragging the thing out in litigation.

I suggest that you need to have an experienced family law attorney on your side. Find someone in your county with at least 10 years' experience locally (you want someone who knows the other attorneys and knows your judge). While interviewing with attorneys, ask them about move-aways involving unborn kids when another existing child is around. Anyone who bumbles on an answer, keep looking. You want someone who has a gameplan for you.

Good luck.

This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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