If my husband and I are still married without custody order, and my oldest daughter wants to live with me, can I take her without his permission ...

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If my husband and I are still married without custody order, and my oldest daughter wants to live with me, can I take her without his permission

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DakotaLegal's picture

The Best Interests of Your

The Best Interests of Your Daughter
 
Everything we will talk about here has one really common question: “Is what you want to do in the best interest of your daughter?” This question is so important, the United States Supreme Court has even upheld the principle. http://supreme.justia.com/cases/federal/us /466/429/case.html.It may seem easy to answer, but what I’m also suggesting to you is to be able to document, or to prove, the right answer is “yes, my daughter’s interests have been first” in deciding where she should live.
 
The problem you will possibly get into is that “taking” a child, unexpectedly or without co-operating with the other parent, can be a legal minefield. This will be opening you up to several allegations…not necessarily crimes, but to a certain suspicion by a judge that you are not acting responsibly, and “in the best iteersts” of your daughter. It may help you to think of how a judge will look at just “taking” a child. A judge would wonder where this would stop: if you have a right to take your daughter, then the father (right now) might have the same right to take her back.
 
The bottom line is that a judge will probably view any effort to treat the child as a pawn, or to get her to take sides, as a reason not to have custody with the parent causing this kind of tumult. Judges aim for what they’ll call “civility.” You can actually get pointers on how a judge will decide custody: http://apps.americanbar.org/legalservices/probono /childcustody/judges_ guide.pdf.
 
None of this applies, however, if you have reason to believe your daughter is at risk of being harmed right now. In the same way, if you also have reason to be afraid of your husband due to past abuse, then this will also have serious implications for your daughter, and add favor to your having custody. http://www.fcadv.org/.
 
Regardless, there are some low cost legal options for you, based on your income and where you live. http://floridalegal.org/.
 
Your Current Custody Arrangement
 
Courts like to see a parenting plan in place. Based on your comments, it appears that you have not yet filed for either separation or divorce. I am assuming that you are no longer co-habiting with your husband. You can begin a custody case by also filing for either a legal separation or a divorce itself. Here’s a place to get all the forms you need for either: http://www.flcourts.org/gen_public/family/forms_rules/928Cover.pdf. Cost may be a consideration, since filing for divorce is around $400. If you want to file for a divorce, ask your county circuit court clerk for a waiver if you cannot afford to pay the full costs. Find your county clerk’s address here: http://www.flcourts.org/courts/circuit/circuit.shtml
 
One interesting point that is not at all clear is when you say “your oldest daughter.” Do you and your husband have other children together? Keeping siblings together, especially if they are the same sex, is a consideration in custody decisions.
 
 
Other Places For Custody Help and Advice
 
Courts are only one place for help. Especially based on the chance you have other children, I wonder about your housing. To be awarded custody, your shelter can be very important. If you need emergency shelter, or the help from an advocacy group, you might contact a local support shelter: http://www.womenshelters.org/sta/florida.
 
Depending on the age of your daughter (usually 12 or older), she may have a lot to say about where she should live. At some point, she will have a chance to talk with a  court-approved counselor. The last thing you want to have your daughter feel, and tell, that counselor is that she feels pressured from you about deciding between her parents.

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DakotaLegal's picture

The Best Interests of Your

The Best Interests of Your Daughter
 
Everything we will talk about here has one really common question: “Is what you want to do in the best interest of your daughter?” This question is so important, the United States Supreme Court has even upheld the principle. http://supreme.justia.com/cases/federal/us /466/429/case.html.It may seem easy to answer, but what I’m also suggesting to you is to be able to document, or to prove, the right answer is “yes, my daughter’s interests have been first” in deciding where she should live.
 
The problem you will possibly get into is that “taking” a child, unexpectedly or without co-operating with the other parent, can be a legal minefield. This will be opening you up to several allegations…not necessarily crimes, but to a certain suspicion by a judge that you are not acting responsibly, and “in the best iteersts” of your daughter. It may help you to think of how a judge will look at just “taking” a child. A judge would wonder where this would stop: if you have a right to take your daughter, then the father (right now) might have the same right to take her back.
 
The bottom line is that a judge will probably view any effort to treat the child as a pawn, or to get her to take sides, as a reason not to have custody with the parent causing this kind of tumult. Judges aim for what they’ll call “civility.” You can actually get pointers on how a judge will decide custody: http://apps.americanbar.org/legalservices/probono /childcustody/judges_ guide.pdf.
 
None of this applies, however, if you have reason to believe your daughter is at risk of being harmed right now. In the same way, if you also have reason to be afraid of your husband due to past abuse, then this will also have serious implications for your daughter, and add favor to your having custody. http://www.fcadv.org/.
 
Regardless, there are some low cost legal options for you, based on your income and where you live. http://floridalegal.org/.
 
Your Current Custody Arrangement
 
Courts like to see a parenting plan in place. Based on your comments, it appears that you have not yet filed for either separation or divorce. I am assuming that you are no longer co-habiting with your husband. You can begin a custody case by also filing for either a legal separation or a divorce itself. Here’s a place to get all the forms you need for either: http://www.flcourts.org/gen_public/family/forms_rules/928Cover.pdf. Cost may be a consideration, since filing for divorce is around $400. If you want to file for a divorce, ask your county circuit court clerk for a waiver if you cannot afford to pay the full costs. Find your county clerk’s address here: http://www.flcourts.org/courts/circuit/circuit.shtml
 
One interesting point that is not at all clear is when you say “your oldest daughter.” Do you and your husband have other children together? Keeping siblings together, especially if they are the same sex, is a consideration in custody decisions.
 
 
Other Places For Custody Help and Advice
 
Courts are only one place for help. Especially based on the chance you have other children, I wonder about your housing. To be awarded custody, your shelter can be very important. If you need emergency shelter, or the help from an advocacy group, you might contact a local support shelter: http://www.womenshelters.org/sta/florida.
 
Depending on the age of your daughter (usually 12 or older), she may have a lot to say about where she should live. At some point, she will have a chance to talk with a  court-approved counselor. The last thing you want to have your daughter feel, and tell, that counselor is that she feels pressured from you about deciding between her parents.

RJasondeGroot's picture

No.

No.

That is not a good idea at all. The parties are supposed to agree upon everything regarding the raising of the children. When you make unilateral decisions, you are just asking for trouble. Get an attorney on your side, and in the meantime read the provisions of Florida Statutes, Section 61.13(3). That is a great guide as to the factors that the court considers and also as to how the parties are to act toward each other and the child or children.