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Emergency Custody until allowed to file for divorce

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Shisataa Suzume

Junior Member
What is the name of your state (only U.S. law)? VA
What is the name of your state (only U.S. law)? VA

My brother and sister-in-law are in horrible financial shape- credit blown, can barely make the rent, debt up to the eyeballs despite already filing for bankruptcy once.
He works 6 days a week from early in the morning until 6 at night. She has been unable to hold a job for more than a few weeks at a time over the past several years and does not really contribute financially.
They have been married for a little over 7 years and have a 7 year old child. My brother has decided it is time to divorce his wife and he wants primary custody.
She suffers from a host of mental difficulties, has been hospitalized, and is emotionally and verbally abusive and unstable. She was recently arrested for a felony theft in VA. Sentencing is in a couple of months- she may take the felony conviction and serve no time with probation or serve 3 months jail time to have the charge lessened to a misdemenor (second offense).
Since he has to work so many hours to support the family, she is responsible for getting their child up for school in the AM. Several complaints from school have revealed that she does not get the child up on time, misses the bus, and drops her off on the curb in front of the school (a no no).
Enough is enough. He's done. There is no hope of reconciling. He needs to get himself and his child away from this abusive woman. The problem is, all his family support lives an hour or more away. She is estranged from her family and has alienated them from any friends that can help care for their daughter (One friend filed a restraining order against her!).
VA requires 1 year separation before even filing for divorce. If, once his daughter has completed this school year, can he legally move closer to me and other family (neighboring state) that might be able help care for his daughter during his work hours?
He has indicated his desire to her for a separation and divorce, she in turn said her only option would be to move to FL and take the child with her. Can she legally do this? How can he obtain emergency temporary legal custody until he can file for divorce?
 


mistoffolees

Senior Member
He can move if he wishes, but his wife can then go back to court to have the child returned to its old home. For that reason, it is generally not a good idea to simply move with a minor child without the permission of the other spouse (even with the other spouse's permission, it is risky because they can withdraw that permission at any time unless there is a court order).

I would suggest asking for the court to decide on the custody issue on a temporary basis (until he can file for divorce).

Given the circumstances as you've described them, there are two major issues. On the one side, the mother has been the primary caregiver which gives her an edge in the custody determination. In addition, it is better for the child to remain in familiar surroundings if everything else is equal. OTOH, (if your story is true - which is always a question from 3rd party reports), it may be better for the child to be in the father's care. However, what he SAYS is not particularly relevant. What matters is what he can PROVE.

In cases like that, it really comes down to who can convince the judge that the child is better off with them. If the decision is not clear cut, the judge can order a custody evaluation (or either spouse can request it). If a spouse feels that the other spouse is really unfit, but doesn't have hard evidence to prove it, that is often the easiest solution.

All of that said, I would encourage him to look at it another way. The child is 7, so they have at least 11 more years to cooperate in raising the child. If they start out with an adversarial situation, the next 11 years are likely to be rocky. In the long run, it may be better to have the discussion with the other spouse and explain the problem and possible solutions - and then get a mediator (or child custody evaluator) involved in helping them to reach an agreement that they can present to the judge. An order dictated by the judge over one spouse's objections is far less likely to lead to long term satisfaction than a mutually agreed upon decision.
 

Shisataa Suzume

Junior Member
Thank you.

I had advised my brother to seek out a mediator that they might be able to come to some sort of agreement. What should be the first step? Talking to a mediator, or having an initial consultation with a lawyer?

If she chooses to accept the incarceration to have her charge reduced, she could be in prison for 3 months. If she chooses the other option of probation and accepting the felony charge, how does that affect her ability to seek custody, if any?
Nobody wants to "burn" my sister-in-law, just do the best for my niece (even if that means mom gets custody).
 

LdiJ

Senior Member
Thank you.

I had advised my brother to seek out a mediator that they might be able to come to some sort of agreement. What should be the first step? Talking to a mediator, or having an initial consultation with a lawyer?

If she chooses to accept the incarceration to have her charge reduced, she could be in prison for 3 months. If she chooses the other option of probation and accepting the felony charge, how does that affect her ability to seek custody, if any?
Nobody wants to "burn" my sister-in-law, just do the best for my niece (even if that means mom gets custody).
One thing you stated is that your brother doesn't plan to move until the end of the school year. That is quite a ways away. The circumstances as they stand then will be more significant than the circumstances as they stand now. Right now, there is a lot that is up in the air, that will not be up in the air then.
 

mistoffolees

Senior Member
Thank you.

I had advised my brother to seek out a mediator that they might be able to come to some sort of agreement. What should be the first step? Talking to a mediator, or having an initial consultation with a lawyer?

If she chooses to accept the incarceration to have her charge reduced, she could be in prison for 3 months. If she chooses the other option of probation and accepting the felony charge, how does that affect her ability to seek custody, if any?
Nobody wants to "burn" my sister-in-law, just do the best for my niece (even if that means mom gets custody).
I would consult with an attorney first. Mediation works best if both parties have at least a rough idea of what options the court would have and maybe even an idea of how the court would decide in a given situation (this, of course, is never absolute, but a good attorney could say "there is only a low likelihood that you would get xxx" or something to that effect.

A good mediator would also have some idea of how a judge would decide, but they're not supposed to be offering advice like that, so their knowledge might not be helpful.
 

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