Suddenly my wife wants me to leave without her and to leave our son in her custody. Can she do this?
November 27, 2010 11:51 AM   Subscribe

We are visiting my wife's parents in another state. Suddenly my wife wants me to leave without her and to leave our son in her custody. Can she do this?

Please read the entire question if you have any advice. I am already aware I will need a lawyer as soon as possible.

My wife and I have been married for four years and have a three-year-old son. My wife does not work and while I was previously working for an employer, I have also stopped for working for about the past year or so. I have been trying to earn income freelancing, but it has not been monetarily successful.

Recently, we have started to run out of money and decided to move out of our apartment. Our plan was to move in with my parents temporarily until we figured things out.

We decided to travel out of state to visit my wife's parents. After staying a few weeks and our departure date came, we decided to extend our trip for an additional few weeks in order to spend Thanksgiving with my wife's parents.

During the past few weeks, my wife has said that she would like to move down here. So I have started looking for work in this area to try to find a way to support us and we wouldn't have to continue staying with her parents.

Tonight, after Thanksgiving, my wife told me that she doesn't think that I should stay here. She has said that she thinks that we should get a divorce and that I should go home alone without her or our son. She thinks that our son should stay with her until we have divorced and figured out the custody arrangement.

I don't want to separate. I love my wife and our family. However, she seems to be determined in her decision.

If I am to leave now and return home, I would stay with my parents while figuring this all out, as originally planned, with the obvious exception of my wife no longer being with me.

However, I feel that since this is my wife's decision to do this, that our son should stay with me until we figure out the custody arrangement. My wife refuses to consider this as a possibility and insists that he must stay with her. She says that she will die without him.

My wife's family is well-to-do and she has considerable resources here. For me to stay here in order to be near my son while we figure this out will be significantly difficult for me. I feel that I have been somewhat deceived and do not trust my wife right now. I am concerned that I should not leave here without our son, but my wife has said that she will do anything in her power to prevent me from taking our son back with me.

My wife would be welcome to return with me and our son, but she is not interested in doing that.

It is clear that I will need to hire a lawyer as soon as possible to help me understand the situation and defend my rights.

I am looking for advice outside of recommending that I get a lawyer. I am already aware that I need to do that right away.

I need help figuring out how I should view this situation. Am I wrong to ask that my son stay with me in this situation? Is my wife being reasonable?

Also, should I be looking to hire a lawyer here or in the state that we came from and have been living in before coming here?

The first thing I'll ask my lawyer is if my wife can do this to me? If anyone has any thoughts about that, I'd love to hear them. It might help me understand the situation better before talking to a lawyer. I won't be able to talk to a lawyer until tomorrow at the earliest (it's 3 AM here).

If you think you can help me in any way, but need more information, please email me at:
posted by anonymous to Human Relations (25 answers total) 8 users marked this as a favorite
You're welcome to memail me or email me with that information. Further information - are your in laws willing to allow you to stay in another room in the home and co-parent? Has there been any other issue that has caused this, for instance cheating?

Custody issues involve literally dozens of different factors. If you left now, it could potentially be seen as abandonment if she chooses to claim that it is. But a competent lawyer in your jurisdiction will know more.
posted by By The Grace of God at 12:01 PM on November 27, 2010

A mom is not going to be reasonable when it comes to a child she has been primarily caring for. It might be a bit much to expect her to be.

I don't know if legally at this moment she can keep you from leaving with your son but psychologically and realistically it would be a very bad, very traumatic thing for your son to deal with if there is a scene-and you know there would be a scene. First thing to consider is what is in the best interests of your son. Second thing is talk to a lawyer because anyone else including me would be talking out their posterior.
posted by St. Alia of the Bunnies at 12:04 PM on November 27, 2010

Seconding the notion that if you leave, that will be factored into a future custody fight. Get something in writing with her now, if only an agreed-upon letter of intent.
posted by Cool Papa Bell at 12:08 PM on November 27, 2010 [2 favorites]

you have to get a lawyer in the state where the child has most recently resided for at least six months. if you have spent the last X weeks at your in-laws, there is nothing that they can do to start a case in their state. it would be interesting to know what two states we are talking about here...
posted by lakersfan1222 at 12:25 PM on November 27, 2010 [1 favorite]

It occurs to me that since you're staying with her parents (and assuming they're aware of all this and are supportive of her), they can insist that you leave their home at any time. If you refuse or stall, they could get the police involved, which would probably lead to DCF (or your current state's equivalent) and/or social workers getting involved. (I base this on an experience in my very distant past, in which as a kid I was on vacation with my family in another state, some stuff happened, police were involved, and I was put in The System of said state for a short while as a result, even though it was not the state I actually lived in permanently. Upon returning to my home state, I was transferred to The System there.) This wouldn't necessarily be a bad thing for you, since it would put on record the fact that you didn't abandon the kid and your wife is the one initiating all this.

It might be in the best interests of the boy to stay with her while you work things out, just for practical reasons -- her family's well off and so you know his needs will be met, whereas if you're in as tight a financial situation as you say, things could be harder for him. (You don't mention how well off your own parents are.) Of course, little kids are often a lot more resilient than we give them credit for.

I'm sorry you're dealing with all this and whatever else happens, I urge you to start documenting EVERYTHING from here on out. It's pretty shocking that she would spring this on you so suddenly and unilaterally. Is there any way your parents could assist you in paying for a place to stay in the state where your wife and son are? Alternatively, and you'll probably need to swallow your pride for this, try contacting social services for yourself, since if her parents throw you out, you'll be effectively homeless in that state and may qualify for assistance. Even though your parents are willing to let you stay with them, I suspect the whole ordeal will be a more complicated for everybody if you're living in different states.
posted by Gator at 12:27 PM on November 27, 2010

While you're sorting this out, you are going to want to build the foundation of your custody argument. Get a job. Any solid job. Do not let this distract you from the search.
posted by thejoshu at 12:28 PM on November 27, 2010 [5 favorites]

hey gator - it's not complicated at all witheveryone if living in different states. the laws are very clear and the OP's lawyer from his home jurisdiction can make short work of this issue.
posted by lakersfan1222 at 12:30 PM on November 27, 2010

As far as whether to hire a lawyer in your home state or the one her family is in, it raises a huge red flag (in my non-lawyer mind) that she didn't tell you she wanted a divorce until you were out of state (where there are different laws and you have fewer resources and less support.) I think it's important that you find a lawyer who's (a) proficient with the specific family laws and provisions in that state, and (b) physically near/accessible to you and her. If you can, find a way to stay near her, in state. (Do you have any friends there? Or even family on her side who would be sympathetic to you trying to work things out and staying with them until you do?)
posted by kagredon at 12:31 PM on November 27, 2010 [1 favorite]

Don't let custody of your son become something to fight over right away. For the immediate future, he has to stay with one of you - which one is better for him? If it's all the same - which one is the easiest?
Get a lawyer, and make sure everything is in writing.
posted by TravellingDen at 12:32 PM on November 27, 2010

Ugh. I felt heartsick reading your post. I am so sorry this is happening. I agree that no decisions should be made until you contact a (great) lawyer on Monday. In the meantime, only do what causes the least amount of anxiety for your son.
posted by murrey at 12:39 PM on November 27, 2010

Is she being influenced by her parents or some other person? What is your relationship with your in-laws? Is this really an out-of-the-blue thing?

Not that it really matters what the reason is. Anyone can leave a marriage whenever they want, and its not your house so you have no legal right to stay, and afaik, there are no laws regarding custody until a divorce or separation agreement is in place.

A mom is not going to be reasonable when it comes to a child she has been primarily caring for. It might be a bit much to expect her to be.

Nowhere did it say that the mother was any more the caregiver than the father. And it is never too much to expect people to be reasonable.
posted by gjc at 12:39 PM on November 27, 2010 [10 favorites]

The MetaFilter wiki has resources on how to find a lawyer. Start by getting a lawyer where you are now. If a lawyer in your home state is more appropriate, they will tell you that quickly.

Document everything. Start writing down everything that has happened, especially crazy sounding statements like saying that "she will die without him."

I would avoid negotiation with your wife or leaving town until you discuss this with a lawyer. Be prepared to find a place to stay, because obviously you won't be able to stay in the in-laws house if they want you gone.
posted by grouse at 12:54 PM on November 27, 2010 [7 favorites]

I'd be tempted to just bring the kid back with me because mom is being such a bitch here, not to mention crazy dramatic (really, she'll die if your kid goes back home with you?). BUT as a responsible parent, your first choice should be to try to do what's in the child's best interests -- whatever that is.

Whether you're "wrong" or your wife is being "unreasonable" is completely beside the point. She decided your marriage was over, somehow she wanted it to just end without having to tell you... whatever. The point is, it's over, and custody is something that gets decided by a judge upon dissolution of your marriage. Showing that you can be reasonable and act in your child's best interests is only going to help. To the extent you can document the events that have taken and are taking place, why not try to do that.
posted by J. Wilson at 1:20 PM on November 27, 2010 [1 favorite]

Being in two different states throws up huge red flags for me. If you did take him back to your home state and she called the cops saying you kidnapped him that could be a federal crime. Crossing state lines and all that, lots of room for all kinds of crazy there. Be very careful.

If I were you I would either ask to stay in a different room at the in-law's place or find a cheap motel very near by. Can your parents help with expenses? Absolutely keep up the job search, and if you do move out make sure you see your child every chance you get.
posted by TooFewShoes at 1:34 PM on November 27, 2010

Lawyer up. Now. You need someone right away. Someone from your home state. You want to know in the next few days what your rights are, what the consequences of the various actions are, etc. Time is of the essence. For instance, Nevada will accept jurisdiction if the plaintiff has resided in the state for six weeks. Your wife may be trying to move jurisdiction to her parent's home state. Only a lawyer can help you sort this out.
posted by caddis at 2:49 PM on November 27, 2010 [1 favorite]

As long as there is no pending legal action (custody, separation, divorce) - she is well within her rights to keep the child at her parent's home out of state.

Your particular situation is a little tough for a couple of reasons - you are unemployed, your wife's parents are wealthy and your wife's parents have, I assume, agreed to support your wife. Also, you consented to traveling out of state and willingly stayed with her parents. You (usually) have the option to file for custody before you file for divorce but ultimately the judge will rule in favor of the most "fit" parent.

I am not a matrimonial or family lawyer but I am a lawyer and I am pretty sure that once an action is filed in one state, duplicating that action in another state is moot / unnecessary. You could move back to your home state and file for custody which would require to return to your home state to have the case heard. It is key to remember that this will likely remove the possibility of an amicable separation / custody hearing.

I'm so sorry you're going through this. You can contact me at askme.anonymes at if you have any immediate questions but, as soon as you are able to, contact a lawyer in both states for more accurate advice.
posted by omarlittle at 2:55 PM on November 27, 2010

nevada may accept jurisdiction for the divorce after six weeks but most states in the union will not accept jurisdiction for a custody case unless the child has been residing in that state for six months. divorce and custody are two different things in regard to jurisdiction. the lawyer from your home state will tell you this.
posted by lakersfan1222 at 3:42 PM on November 27, 2010

I'm very sorry. Breakups are hard. When kids are involved, it can be 100 times worse. Whatever happens, keep your cool and keep your chin up.

Go and file a police report. This won't accomplish much - absent a court order they won't remove the child - but it will establish that you did not abandon the child to her and tried to take him with. They may be willing to try and talk with her, but I wouldn't bet on it. In any event, the documentation will be useful.

First thing Monday, find and talk to several lawyers. I'll bet they say that the court in your home state will have jurisdiction. If that is the case, you need to get back there as soon as is feasible. You'll need to file for an injunction and a divorce and a temporary custody/visitation schedule and a bunch of other things. You need to move quickly on this.

A good lawyer will fill you in on the specifics.

Also, keep your trap shut. Anything you say will be used against you in the worst possible way. You are best off keeping things to email. Keep them short and to the point and polite. Imagine you are writing to your boss' boss.

Some support - Most likely you will be fine. Get a good lawyer, and always be the better human, and things will turn out OK.

Memail me if you need more. And good luck.
posted by Pogo_Fuzzybutt at 4:24 PM on November 27, 2010 [4 favorites]

I'd suggest talking to her parents right away, without her. Tell them the whole story you know, including the part about loving her and not wanting to divorce. Tell them you're sorry this mess occurred in their house, and that you intend to leave, but that you don't want to do that until you've talked to a lawyer about whether or not that is a move that would hurt you legally. Assure them that you will talk to a lawyer as soon as you can. Basically, try to keep on friendly terms with them (however strained) and not just be a squatter in their house.
posted by ctmf at 5:26 PM on November 27, 2010

Ctmf, you seem to be assuming that the parents don't already know, and in fact, aren't urging this. I don't think it's wise to assume so, especially since she sprung it on OP so suddenly. Who HAS she been talking to, if she hasn't been talking to her husband?

Frankly, at this point, I'd suggest the OP treat the wife's parents as potentially hostile. And go with Pogo_fuzzybutt's admonition to keep his trap shut.
posted by galadriel at 6:19 PM on November 27, 2010 [4 favorites]

No, I'm not saying assume they are friendly and try to get them on his side or to pour his heart out to them. Just acknowledge that it is their house, tell them what is going on in case the wife's half of the story isn't exactly the whole story, and reassure them that he does not intend to inconvenience them any more than necessary. Keep the communication open and be an adult. For all he knows, the parents have been told horror stories about him being a total irresponsible freeloader. Better to counter that by actually being a responsible, courteous house guest.
posted by ctmf at 7:13 PM on November 27, 2010

Just curious, without any employment and no savings (I assume) will you retain a lawyer?

You have many cards stacked against you. The first order of business for you is to get a job.. Your lack of employment is obviously the biggest obstacle in getting custody! You are kind of screwed in that department and you'll need to start getting your head on straight about it. People who have children can not freelance unless they have a super-solid sure thing client who pays as well as regular and steady employment. Sounds to me like you've been skating, to be blunt. You have a kid, you HAVE to support him and not let others do it for you.
posted by naplesyellow at 8:05 PM on November 27, 2010 [3 favorites]

So you've been staying there for around six weeks? And you don't have another residence? I don't know all the legal details (especially since I don't know what state you're in) but it sounds like it could be possible that you are legally a resident of that house. If that's the case, it might be possible (again, depending on the state) that the parents would have to evict you to force you to leave.

I'm not a lawyer, so I can't give you legal advice, but I used to work for a tenants' rights organization and I know that, at least in Michigan, you always have to go through the eviction process to force someone who has been residing in a house you own to leave. Even if that person is a relative who has been staying without paying rent. I think it's at least worth looking into that possibility, at least to buy you some time so you can contact a lawyer.

This all sounds really difficult. I'm sorry you're going through this and I hope you get the support that you need.
posted by overglow at 8:46 PM on November 27, 2010

Your lack of employment is obviously the biggest obstacle in getting custody! You are kind of screwed in that department and you'll need to start getting your head on straight about it. People who have children can not freelance unless they have a super-solid sure thing client who pays as well as regular and steady employment.

This is nonsense. Seriously.

Firstly, custody and placement are two different things in most states. Custody refers to rights to do things such as see records and administer care. Placement refers to where the child lives and when. (not every state uses this distinction, sure, but it is an important one!)

The OP is already a custodial parent by virtue of being married to the mother at the time of the child's birth. He has custodial rights and absent any reason to remove them, those custodial rights will continue to exist. Unemployment is not a reason for the removal of custodial rights or placement.*

It goes without saying that the OP needs a source of income, of course. He's got to get some sort of job. Whether he's a freelancer or an artist, or a traveling salesman or whatever should have no bearing on his rights as a parent. Child support will be based on his ability to pay given the circumstances.

Besides, He's Dad. many states have a presumption of 50/50 placement absent reasons against it. If the OP lives in one of those states, the mother will have a heck of time getting more than that if he can put up any sort of fight at all.

This is why I said to the OP to keep his chin up. He has significant rights (and responsibilities, sure) in this situation, and assuming he doesn't (and hasn't) make any serious mistakes he should be able to retain a significant relationship with his child.

This is a personal setback for the OP, and it's going to be hard. It is not, however, the end of the world and these are not insurmountable obstacles. The OP has a chance to now make some changes and make things better.

* Child support is an issue, of course. However, failure to pay child support is only very rarely the reason for removal of placement or custody, and only a court order can do that. Visitation is a right the child has - not the parent.
posted by Pogo_Fuzzybutt at 8:13 AM on November 28, 2010 [1 favorite]

I'm curious... You've been staying with her parents for what I assume is over a month. Where were you living prior to going to visit her parents, and what's become of that? You said if you were to leave her parent's home, you'd go and live with your parents. I get this from the financial standpoint, but where's your "stuff"?

Do you have a suitable place for you and your son to return to? Do you have funds, or someone to help you, to maintain even the most basic lifestyle for you and your son?

If your wife is staying with her well-to-do family, I hate to say, but it's definitely a better situation for your son.

Ug. Good luck. I hope this works out somehow....
posted by SoftSummerBreeze at 9:50 AM on November 28, 2010

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