My wife has decided that she will be leaving to go out of state and meet up with her boyfriend. She will be leaving our two sons and my stepson with me.
We have now been living separately for nine months with no legal separation. She says she should return in a few months, but has not given me dates.
Will I be able to get full custody and child support from her if I file for divorce right after she leaves? Would this be considered abandonment on her part? Also, if her boyfriend comes back with her, can I keep him from being around the kids?
While I am not licensed to practice law in your state, I can give some general guidance on this issue.
When you file for divorce and/or legal separation from your wife, it is advisable to also file a motion for custody and child support for your two children.
Depending on the custodial status of your stepson with his biological father, you may also have grounds to file for guardianship over him in her absence.
If you are interested in obtaining temporary guardianship of your stepson, I would advise you to speak to an attorney licensed in your jurisdiction prior to filing anything with the court. This can ensure that you are fully advised as to your rights as well as any potential issues that may arise since he is not your biological son.
Typically, a child is not considered abandoned until a two-year period of time has passed where the parent willfully withholds physical, emotional and financial support from a minor child or children.
However, this requirement is different in each state. This is really only helpful to you in the event that you want or need to attempt to terminate her parental rights in the future.
That being said, the acts of her moving out of state and leaving you with the children makes you the de facto primary physical custodian, and you would also be entitled to child support.
Restraining orders are typically granted in order to protect an individual from further harm, to keep an abuser away from a victim or to prevent harassment. Therefore, unless her boyfriend has harmed the children or threatened harm in some form or fashion, it is unlikely you will have the evidence necessary to obtain a restraining or protective order.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.