Can my husband keep my son even though I filed physical custody of him? 4 Answers as of July 03, 2013I have recently filed for separation from my husband, seeking physical custody of our kids. Last Friday, he willingly went with my husband to LA, but my husband never informed me. Once my husband is served with separation papers, I am afraid that he will not bring my son back to me out of spite. Can he do that and what can I do?
Law Offices of Jill K. Whitbeck | Jill K. Whitbeck
Yes, he can, as you each have equal rights to your children when you are still married until a court orders otherwise. However, you can file an emergency motion to have the child returned to your custody in the State of Nevada, and the Judge will not be happy with your husband for playing games with the child, effectively putting the child in the middle of an adult dispute. Doing this on your own is not a good idea, especially with what your husband may be up to. Get a lawyer, or at least consult with one.
Answer Applies to: Nevada
Elizabeth Jones, A Professional Corporation | Elizabeth Jones
Filing papers does not mean that there is any change in parental rights. You both have equal parental rights to your child. When you serve him he will have notice of what you want. Then he must respond. You still won't have an order of the court. Your best bet is to communicate with father and work out a parenting plan that is in the best interests of your child and that allows your son to have frequent and ongoing relationship with both parents.
Answer Applies to: California
Eric Johnson | Eric Johnson
Your question is confusing, so I will have to make certain assumptions in attempting to answer it. Rarely in Utah does anyone "file for separation" from a spouse. Utah does not require married couples to be legally separated before they can file for divorce, so both people wanting a divorce simply skip straight to the divorce and don't bother with separation. This is not to say that Utah does not have a legal separation option, it's just that most people don't use it. So, assuming that you are in fact seeking a legal separation from your husband, and that as part of your motion for separation you have sought physical custody of your children, if there is no court order awarding physical custody to you, your husband is free to travel with the children wherever he wishes, whenever he wishes, and to do so without your knowledge or consent. If your husband has taken your child or children to another state with the intent to reside there, he is perfectly within his legal right to do so. The point at which your husband is served with your legal separation or divorce pleadings does not change his legal rights to keep the children in his custody. Only if a court in either California or Utah issues in order awarding custody to you would he have to return the children to you. Utah follows the Uniform Child Custody Jurisdiction Enforcement Act. To summarize the UCCJEA generally and for the purposes of this question, jurisdiction over child custody lies (with few exceptions, although exceptions do exist) with the state where the children have last resided for six consecutive months or longer. if the child that your husband currently has with him in California has not resided in California for six consecutive months, but instead resided for six consecutive months in Utah before coming to California, it is almost certain (though not guaranteed) that Utah would have jurisdiction over the child custody question. This does not mean, however, that just because Utah has jurisdiction over the child custody decision that you will be awarded child custody because you remain in Utah. Your husband could still be awarded custody of the child regardless of where he resides, if the court determines that is in the child's best interest.
Answer Applies to: Utah