Custody Question

You do not have to file a separation agreement to be separated. If you and your spouse are no longer living in the same residence then you can file for custody. The judge will only look at that your circumstances as opposed to those of your husband and which situation will better benefit the child. It may only be ruled temporary custody until divorce is final as with separation you are both still legally entitled to the same access to your child.
Please consider joint physical and legal custody before you file. It is not always the best solution for the parents but unless the child is in danger, it is the best solution for the child. Children need both parents to be equally involved in their lives and if they are old enough they should have some say in this. Please consider carefully your reasoning behind going for custody and make sure they are for your child’s benefit and not for your own.
If joint physical and legal is something that you two can agree on with a schedule, get it in writing, both sign and have it notarized. It is still a legal document this way but it will not cost the 1000’s of dollars it will cost both of you to go to court and battle over it. You can do any type of custody or child support agreement without getting lawyers and courts involved. Once that happens, the only ones winning are the lawyers.

What is my husband is still living at my residence occasionally? He doesn’t have anywhere to go so he still stays at my apartment.

Then you are not separated and there is no reason to file for custody.

Thanks for the response.

Dear Noah1,

If you file an action for Divorce from Bed and Board you can also file an action for custody. You do not have to file for a separation. If you want to file an action for custody you need to stop allowing your Husband to spend the night in your apartment.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

Can I file for custody of my son without filing for separation from my husband. Will a judge question why I haven’t filed for separation? Will it decrease my chances of winning custody if I do not file for separation or does the judge have to look at the best situation for the child regardless if the parents aren’t legally separated?