I’m a Sgt. in the U.S. Army and have a son who just turned 3. My wife recently filed for divorce and took our son with her to Puerto Rico without telling me while I was away for training for three days.
I just got a temporary order in place granting me custody of our son for five and a half weeks. My wife remains, for now, the custodial parent and is staying in Puerto Rico for the duration of the five weeks.
My lawyer has not requested a final hearing as of yet. My concern is that my attorney might be dragging things out and my wife might have the opportunity to establish residence for her and my son, making it harder for me to get custody.
Is there any way I can get the court to order my son back to my state?
I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of your state and can only provide you with general tips on your situation.
In Virginia and Alabama, where I am licensed, a parent must overcome the burden of proof that it is substantially in the child’s best interest to relocate the child out of state and away from the non-custodial parent, as long as the non-custodial parent objects to the move.
Unfortunately, if you are in the military (and may be considered transient) and she has family and support in Puerto Rico, the court may find it to be in the child’s best interest to live there.
Depending on the totality of the circumstances, it may be in your best interest to ask for physical custody of your son or at least shared physical custody.
Regarding your concerns about residency, your son would have to reside in Puerto Rico for six months to be considered a resident there. At that point the court in your state would have to transfer jurisdiction to Puerto Rico for the issue to become more complicated. Although it is possible for the court to do so, I have never witnessed a court relinquish jurisdiction in the middle of a pending divorce.
These are all issues that you need to discuss candidly with your attorney and figure out together what his best course of action would be.