Question:
My ex-wife is an alcoholic and I believe she is abusing our children. There is no custody arrangement in order, but the children spend the majority of their time with her.
Since there is no custody agreement, can I move with the children out of state to protect them from their mother or should I get a Protection from Abuse Order against her?
Answer:
As you have provided me with limited information regarding your particular situation, please keep in mind that I can only respond generally as to my impressions of your case. Your case, from my limited understanding of it, sounds fairly complicated. You can be sure of one thing, though; if you remove your children from this state, it will only make matters more complex.
Where a custody order is not in effect, Pennsylvania, as the “home state” of the children in question, will maintain jurisdiction over any custody matters for 6 months. Therefore, if you choose to take the children to out of state and Mom finds out, which she most certainly would, she has 6 months to file a custody action and essentially force you back to the state to sort out the matter. In my experience, you can bet almost 100% that Mom will take legal action if you move and you will have no choice but to return to Pennsylvania to address the situation.
My recommendation is as follows: do not remove your children from this state. Instead, file for a Protection From Abuse Order (PFA) and request temporary primary custody of your children.
If the situation at their mother’s house is as bad as you say it is, I am fairly confident the court will grant your petition. As your children’s biological parent, you may file for the PFA on their behalf.
Keep in mind that the court does not like to circumvent the proper channels for obtaining custody by making custody determinations via PFAs. Any custody the PFA awards you will be temporary.
Therefore, you should be prepared to file a complaint for primary custody with the Family Division of your county’s court immediately following the grant of your PFA petition. When seeking primary physical custody, it can be highly helpful to have a PFA order in effect against the other parent because it helps establish your entitlement to primary custody.
In your case, you might want to request an emergency custody order. Even though courts generally are not receptive to requests for emergency custody, in cases where the children are threatened by immediate harm emergency actions can be appropriate.
If and when you are awarded primary physical custody, then you can begin to think about leaving the state with your children. Should you still wish to move out of state at that time, bear in mind that should Mom challenge your relocation, the court’s standard for determining whether the move should be allowed is the “best interest of the child” standard.
I recommend seeking further legal advice. Cordell & Cordell has attorneys licensed and located in Pennsylvania who can provide a more in-depth analysis of your current situation.
Margaret M. Daly is a Staff Attorney in the Pittsburgh, Pennsylvania office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Daly is licensed in the state of Pennsylvania. Ms. Daly received her undergraduate degree in English and Psychology and her Juris Doctor from Duquesne University. While in law school, she worked with Pittsburgh’s Neighborhood Legal Services Association, assisting low income clients in a variety of Family Law Issues.
child abuse
I blame my annoying brother for some of the physical abuse that happened to me.
why should moms protect their children from abusive dads
When I was physically abused by my step dad Mom did nothimg about it most of the time.
This is an offensive position as opposed to a defensive position – Slimy
I would agree with the comment above and would say that it would have limited impact unless you can truly substantiate your claims of abuse – alcohol and of the children. You may get the Temp PFA but it will most likely be thrown out and will have a limited impact on you gaining ultimate custody. You will however move your challenges between you and your ex, to new levels which will wind up costing you more money in legal fees. Think wisely before such an action.
This is an offensive position as opposed to a defensive position – Slimy
I understand your statement but it sucks. As a parent caugth up in this situation myself, I must say that you are correct and that it works like a charm but it truly sucks to be on the receiving end of this solution, especially in a situation where your tied into lies. You’ve described my wife’s potion to a T. Her interest to move back to California from PA, her false claims against her and especially the accusation against me, say that I molested my kids. I know you are proving legal advice and I know that this advice is sound from my experience, but it sucks as a position to move forward with.