What are my rights to child custody if my wife is having an affair? 20 Answers as of July 11, 2013

My wife is having an affair and left to be with her new man and keep my son with me. What are my rights? She wants to take him Monday for the day but I’m afraid that she will not bring him back.

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Gregory T. Buckley, Attorney at Law
Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
You both have rights to your child. If you are filing for divorce, the court will definitely take into account her affair when trying to determine her moral fitness.
Answer Applies to: Florida
Replied: 7/13/2011
Seattle Divorce Services
Seattle Divorce Services | Michael V. Fancher
Under Washington law is up to the court to determine what time the child should spend with each parent. Until there are court orders in place neither parents has more rights that supercede the other's. To establish a residential schedule for your child, you may need to file a divorce action and then ask for a temporary parenting plan. Often the court will keep the child's primary residence with the parent the child is living with at the time.
Answer Applies to: Washington
Replied: 7/7/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
Either salvage your marriage for the benefit of your child or file immediately for divorce for abandonment and adultery. Ask for an emergency Pershing that prevents her from having the child overnight in an unfit moral environment. Stay well.
Answer Applies to: Alabama
Replied: 7/6/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
The affair does not deprive your wife of her parental rights. If you want custody of your son, file a divorce case and seek his custody in an Order to Show Cause. If you deprive your wife of her relationship with your son, that might backfire on you, because she is entitled to frequent and continuing contact with your son. If she refuses to return your son to you, waste no time in finding an experienced Family Law Attorney to file your divorce case and prepare an OSC on your behalf.
Answer Applies to: California
Replied: 7/6/2011
Vincent J. Bernabei LLC
Vincent J. Bernabei LLC | Vincent J. Bernabei
You should get a written agreement that she will return the child. If she has been gone more than 90 days, and she tries to keep your son, you can get a court order requiring him to be returned to you.
Answer Applies to: Oregon
Replied: 7/5/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Affairs do not affect custody unless the children are in jeopardy.
    Answer Applies to: Florida
    Replied: 7/4/2013
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Your rights are exactly the same as if she were not having an affair. That is, if and when a divorce case is filed, a parenting plan designed solely to promote the children's best interest will be developed either by you and your wife or by a judge if you cannot agree. Your wife's affair is legally irrelevant. Until there is a court order establishing a Parenting Plan, each parent has the same, unidentified rights.
    Answer Applies to: Colorado
    Replied: 7/5/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    Right now, you both have equal rights to your son. You need to not deny her contact. On the other hand, right now, nothing requires her to bring the child back. My suggestion is to get something in writing, like a temporary timesharing agreement, that states who will have what time with the child at least until you decide the matter more permanently in a divorce proceeding. That way, if she refuses to give the child back, then you have some sort of evidence that will assist you in a later custody proceeding. Please note though that her affair will have little to no impact on any custody proceeding, as Florida is a no fault state. You should probably consult with an attorney to assist you in protecting you and your child's rights.
    Answer Applies to: Florida
    Replied: 7/5/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    The mere fact that one parent is having an affair will generally have little, if any, affect upon how the court deals with the parenting plan and visitation. Further, until a court makes a ruling on the issues relating to parenting plan and custody, the two of you both have similar rights in the child. You are right, however, that once the mother has possession of the child, there is nothing that requires her to give the child back to you until the court issues and order or parenting plan. Therefore, depending on your situation, it might make sense for you to hire an attorney and have appropriate court orders entered at your earliest opportunity.
    Answer Applies to: Washington
    Replied: 7/5/2011
    The Collaborative Law Group
    The Collaborative Law Group | Jac E. Knust
    It is suggested that you reach a written agreement concerning when the child will be with each parent. That Agreement should be incorporated into a court Order, so that you can enforce what has been agreed to in the event the other parent chooses not to follow the Agreement.
    Answer Applies to: Maryland
    Replied: 7/5/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    The reality is that in the modern world, it is pretty irrelevant.
    Answer Applies to: Nevada
    Replied: 7/5/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    An affair may or may not affect custody. Many things may affect it more. Before doing anything, including working out visitation, see a lawyer and evaluate the case. With no divorce pending, either of you can grab the child at any time. That obviously is not a long-term working solution.
    Answer Applies to: Georgia
    Replied: 7/5/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    Run to a domestic relations attorney for consultation. You need assistance now!
    Answer Applies to: Ohio
    Replied: 7/5/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    Your rights to your son are the same as your wife's. If she left you with the child, that is an indication that she believes you can take good care of him. It sounds as if you need to go ahead and file for divorce and custody of your son. Until you have a court order, either party may keep physical custody, but the court will look more favorably upon the parent who cooperates.
    Answer Applies to: Louisiana
    Replied: 7/5/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    Washington is a no fault State. In a divorce, a parenting plan will be established determining where the child will be every second of the day.
    Answer Applies to: Washington
    Replied: 7/5/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Until there is a parenting plan ordered in Washington State, her rights are no different than yours.
    Answer Applies to: Washington
    Replied: 7/5/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Unless and until there is a custody order issued by a judge, each of you have equal rights to the child and neither one of you can prevent the other from keeping/seeing the child.
    Answer Applies to: Georgia
    Replied: 7/5/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    In my opinion, you should retain a divorce attorney in your area as soon as possible, so that you can discuss all the facts, along with your rights and options. Good luck!
    Answer Applies to: Georgia
    Replied: 7/11/2013
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    You and your wife have equal rights to your son unless there are court orders granting one of you custody. Your wife's affair does not have a bearing on custody and visitation. If your wife conceals your son or keeps him from you, then you would file an Order to Show Cause re Custody and Visitation. The courts will make orders based on what is in the best interests of the minor child. One factor that the Court will look at is which parent will make the child more accessible to the non custodial parent.
    Answer Applies to: California
    Replied: 7/5/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Until there are court orders no one has superior rights. But if you are living with the child at the child's normal residence the police would probably have the child returned there if they were called; and they would tell you to go to court to get custody orders. Here is a link you may find useful: http://www.jud.ct.gov/lawlib/Law/parentalkidnapping.htm
    Answer Applies to: Connecticut
    Replied: 7/5/2011
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