Well, that is a tough situation. She needs to leave one day when he is not there and take her son with her. The child is just as much hers as he is his. Whoever has physical custody of the child can then go to the magistrate of the courts and try to get temporary custody. Staying in that house is only delaying her separation date…she cannot start separation filing until he or she moves out and stays out.
If one parent removes the children from the custody of the other parent and refuses to allow that parent to see the child, especially if that parent was the primary care giver, then an attorey could go to court and get an emergency custody order requiring the child to be returned to or have visitation with the other parent.
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.
If my sister files for custody of her son will her husband be entitled to a court appointed attorney?
One more question…
She wants to leave and move back to her mothers. The thing standing in her way is that she has to work and her son will be with a sitter. Is there anything that can be done to keep her husband from taking the child from the sitter until a court hearing to decide custody?
Until the courts decide custody both parents have equal rights to the child. He can come get his son at any point and there is nothing legally she can do about it. On the other hand, she also has the right to get her son from her husband. Regardless of whether she takes her son with her when she leaves, or leaves him with his father, until it’s decided either by them or in court they BOTH legally have equal access to the child. Depending on the age of her son, the courts could give her temporary physical custody meaning that the child will live with her primarily, but that does not mean that his father has no access to him. Children need both parents and he is the father. Most of the time though, the courts do side with the parent that has had physical possession of the child since separation. It would be better if they could agree on this instead of taking it to court.
Most of the time during separation and divorce, it is the children that are used to hurt the other parent. Make sure to let your sister know that if she is taking the child out of the home that that is what is best for him, not for her. Moving a child from a home they are used to is sometimes more damaging than one of the parents leaving, because they not only have to deal with the loss of time with that parent but their own room and space. At the same time, the parent leaving will often be looked at by the child as leaving them instead of leaving the other parent or the marriage. All they know is that Mom left, or Dad left. Keep in mind that the child is going through the separation and divorce just like the parents are, the only differences are that they don’t get the choice to be with both parents, which is what they want, and they are too young to understand. It’s more stressful on the child in separation and divorce because they still LOVE the other parent. Make sure your nephew knows that he can express his feelings about this and that your sister try to explain what she can so that he will better understand. He’s not the first child to go through this but he doesn’t know that.
She would not be entitled to a court appointed attorney. Until there is a court order for custody both parents are entitled to custody and can keep custody of the minor child as they wish.
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.
My current situation is as follows:
My sister wants to separate from her husband and move out but he will not let her take her child. She will not leave if she can’t take her little boy. She is afraid that if she contacts an attorney and starts separation proceedings that he will take her son and keep him from her. Her husband is not physically abusive but he a very controlling man. I feel she would get full custody of her son once they went to court but she can not be without her child until their court date. What are the proper steps to take in order to protect my sister and her son?