Can she take Child if she wants to move out?

[TLJR3]

What is the name of your state (only U.S. law)?
Texas

Needing to start divorce proceedings. Wife wants divorce and to move out, but wants to take our only child with her. Can she do this?

She is threatening to take child away from me and move out, but she won't file to do things the proper way.
What are my options? She unfortunately does not have a job, has no car(she totaled it 5months ago), has only a grade school education,
and has no family here in Tx to help care for our child. She is also seeing a counselor for personal issues ranging from abuse, to rape, and has really gone off the deep end with mood swings, etc. Anger issues especially.

What are my chance of getting primary child custody if I file for divorce? I am working, have a car, a college education, and fear that she won't be able to give proper care for our child.
Please, anybody I need help and some good advice.

 

[mistoffolees]

What is the name of your state (only U.S. law)?
Texas

Needing to start divorce proceedings. Wife wants divorce and to move out, but wants to take our only child with her. Can she do this?

She is threatening to take child away from me and move out, but she won't file to do things the proper way.
What are my options? She unfortunately does not have a job, has no car(she totaled it 5months ago), has only a grade school education,
and has no family here in Tx to help care for our child. She is also seeing a counselor for personal issues ranging from abuse, to rape, and has really gone off the deep end with mood swings, etc. Anger issues especially.

What are my chance of getting primary child custody if I file for divorce? I am working, have a car, a college education, and fear that she won't be able to give proper care for our child.
Please, anybody I need help and some good advice.

If a divorce is going to happen, anyway, you might as well file for divorce and ask for sole custody.

Let's talk about custody. There are two types: legal custody and physical custody.

Legal custody is about who gets to make decisions for the child. Unless one parent is REALLY unfit, joint legal custody is likely. But it's really not that important - the person who has physical custody generally gets the tie-breaker when there's a conflict (not legally, but in practice).

Physical custody is where the child spends their time. It is usually based on overnights (that is, if the child is with you from 7 am to 9 pm every day and with the mother only while sleeping from 9 pm to 7 am, then the mother would be said to have physical custody, even though you would be the one spending most of the child's waking time). In theory, physical custody goes to the person who would be the better parent for the child. If both parents are equally fit, shared physical custody is preferred (although this can be difficult logistically, particularly if one parent moves away). The court will consider things like those you've mentioned - emotional stability, ability to provide a loving, nurturing environment, but will also consider things like ability to provide contact with the extended family and with the other parent. HOWEVER, the only relevant facts are those which impact the child AND which you can prove. If the mother is in counseling because of her past, but her behavior does not affect the child, it's not relevant. Similarly, if the mother is a complete nut case but you can't prove it with more than your own statements, it's not relevant.

Assuming that what you've said is accurate, you're certainly in a strong position where shared custody is quite plausible and sole physical custody wouldn't be out of the question, but it all comes down to what you can prove rather than assert. Your fears are meaningless. You might talk with your attorney about a formal custody evaluation since the custody evaluation has somewhat looser rules of evidence than a court.

You will want to make sure that you do nothing to try to separate the child from your stbx since the court (rightly) considers continuing contact with both parents to be positive. Spend as much time with the child visiting family members as you can. And, most importantly, you need a care plan. How are you going to provide for the child's needs when you're working or otherwise unavailable?

 

[LdiJ]

If a divorce is going to happen, anyway, you might as well file for divorce and ask for sole custody.

Let's talk about custody. There are two types: legal custody and physical custody.

Legal custody is about who gets to make decisions for the child. Unless one parent is REALLY unfit, joint legal custody is likely. But it's really not that important - the person who has physical custody generally gets the tie-breaker when there's a conflict (not legally, but in practice).

Physical custody is where the child spends their time. It is usually based on overnights (that is, if the child is with you from 7 am to 9 pm every day and with the mother only while sleeping from 9 pm to 7 am, then the mother would be said to have physical custody, even though you would be the one spending most of the child's waking time). In theory, physical custody goes to the person who would be the better parent for the child. If both parents are equally fit, shared physical custody is preferred (although this can be difficult logistically, particularly if one parent moves away). The court will consider things like those you've mentioned - emotional stability, ability to provide a loving, nurturing environment, but will also consider things like ability to provide contact with the extended family and with the other parent. HOWEVER, the only relevant facts are those which impact the child AND which you can prove. If the mother is in counseling because of her past, but her behavior does not affect the child, it's not relevant. Similarly, if the mother is a complete nut case but you can't prove it with more than your own statements, it's not relevant.

Assuming that what you've said is accurate, you're certainly in a strong position where shared custody is quite plausible and sole physical custody wouldn't be out of the question, but it all comes down to what you can prove rather than assert. Your fears are meaningless. You might talk with your attorney about a formal custody evaluation since the custody evaluation has somewhat looser rules of evidence than a court.

You will want to make sure that you do nothing to try to separate the child from your stbx since the court (rightly) considers continuing contact with both parents to be positive. Spend as much time with the child visiting family members as you can. And, most importantly, you need a care plan. How are you going to provide for the child's needs when you're working or otherwise unavailable?

I think that perhaps you are being a tad too optimistic...at least with the sole physical custody being a possibility. Mom has clearly been the primary caretaker for the child, and that carries a lot of weight in a custody decision. He described nothing that would make her unfit by legal standards and if he tries to prove her unfit now he is going to have to explain why she was fit enough to be the child's primary caretaker while they were together, but is unfit now.

The fact that mom doesn't have a job or education is generally irrelevant for custody purposes as well.

Mom absolutely can move out and take the child with her. He can also rush to court and try to get a judge to order mom to bring the child back, which may or may not happen.

OP how long have you been married and how old is the child?

 

[mistoffolees]

I think that perhaps you are being a tad too optimistic...at least with the sole physical custody being a possibility. Mom has clearly been the primary caretaker for the child, and that carries a lot of weight in a custody decision. He described nothing that would make her unfit by legal standards and if he tries to prove her unfit now he is going to have to explain why she was fit enough to be the child's primary caretaker while they were together, but is unfit now.

Well, "Assuming that what you've said is accurate, you're certainly in a strong position where shared custody is quite plausible and sole physical custody wouldn't be out of the question," doesn't seem particularly optimistic to me.

There is a growing trend in many states where shared physical custody is the default (in my state, it is legislated as the default) and applies unless there's a good reason why it wouldn't be suitable. Therefore "quite plausible" seems about right. And, if his ex is as emotionally unstable as he claims AND HE CAN PROVE IT, "physical custody wouldn't be out of the question" seems about right, too.

 

[LdiJ]

Well, "Assuming that what you've said is accurate, you're certainly in a strong position where shared custody is quite plausible and sole physical custody wouldn't be out of the question," doesn't seem particularly optimistic to me.

There is a growing trend in many states where shared physical custody is the default (in my state, it is legislated as the default) and applies unless there's a good reason why it wouldn't be suitable. Therefore "quite plausible" seems about right. And, if his ex is as emotionally unstable as he claims AND HE CAN PROVE IT, "physical custody wouldn't be out of the question" seems about right, too.

On the emotional unstable issue he is hamstrung by the fact that she was perfectly ok to be the primary caretaker of the child while they were together, but now he claims she isn't.

I never said that shared custody wasn't a reasonable possibility, it was the sole custody that I disagreed about.