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When you are separated, but not divorced, who has custody? I want to leave my husband, but he won't
Married Life / 12:13 PM - Sunday April 12, 2009

When you are separated, but not divorced, who has custody? I want to leave my husband, but he won't

let me bring our daughter? I cannot in my right mind leave her with him. She is one. I am afraid he would hurt her or me in retaliation. He isn't physically abusive, so I can't get a restraining order. How can I leave and bring her with me?

- Asked by Female, 36-45

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A legal separation is just as much a court thing as a divorce - the court will decide who has custody of the minor children. In order to leave him and take her with you, you will need an attorney - preferably a family law attorney. A good one will arrange it so that you and your daughter don't have to go anywhere. For the sake of the child and a peaceful and familiar family life, the court rarely, rarely will do anything but keep the child and mother in the home and tell the man to leave. Since the minor child in this case is female, you retaining custody is almost entirely certain. Get an attorney.

A good thing to talk with the attorney about is whether a separation makes any sense in your case. The reason I point this out is that a legal separation is an entirely separate legal matter from a divorce. If you want a divorce after you've been separated, you will have to return to court to obtain that decision and a divorce settlement. That second trip to court essentially doubles your legal costs. If you're sure you want to leave him, a separation is a good way to make this thing take twice as long and cost twice as much.

- Response by 2wheels, A Creative, Male, 56-65, Retired

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I am sorry you have rcvd some rude answers. You are in a painful place right now and deserve as much support as possible. I had a verbally abusive and mean husband, but he never hit me or my kids. I was in the same boat. I couldn't get a restraining order. Painful. If there is any yelling that forces you to leave the home then call the police right away. That was the mistake I made was trying to protect my ex from professional damage by not involving the police when he was verbally abusive. Get out if he is verbally abusive and call the police. Then you can get the restraining order and you will not only become the primary parent, but your likelihood of getting supervised visitation in the future is greater if there is any police involvement. I would have a plan of where to go. Let your friends/family know there may be a time when you need to stay at any given time.

- Response by A Hippie Chick, Female, 36-45, Who Cares?

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As sad as this sounds, you need to wait for a time when he's not home, then pack up your daughter and some belongings, and go.

Make sure you talk to a lawyer first, who can explain to you what your rights are.

You will need to work out a custody agreement with your husband, because she is his daughter too, and he has a right to see her. Your lawyer can help you work out something fair. If you can't come to an agreement, it will have to be settled by the courts, and I think they will consider things such as your income, your housing situation, your emotional stability, and things like that in deciding who should be awarded custody.

- Response by steff81, A Hippie Chick, Female, 29-35, Teaching

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If you take the kid and leave, You WILL make him in to an enemy. How would you feel if he did that to you? You would be out for blood. Since you are the one seeking to leave then leave alone.


- Response by jjcabin, An Intellectual Guy, Male, 36-45, Washington, DC, Technical

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This is a hard one. I would not suggest that you leave your daughter alone with her father. I do not know her age but ...
Girl do like the movies. Plan well and make your move when he isn't around. Give yourself enough time to get away.
Good luck in your endeavours.


- Response by A Thinker, Female, 36-45, Teaching

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what're you goofy or somethin?
leave when he's not around. go somewhere safe, but not to some other guy's house because he'll definitely be able to take the kid from you if you do that.
surely you've got at least one relative you can go stay with. but not a guy relative if you live in one of the incest states...

- Response by justinaminit, A Rebel, Male, 36-45, Who Cares?

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Oh my gosh sweetie.... I would contact a lawyer first thing tomorrow morning.... it would be my first thing I did. .... I wouldn't try to even attempt to handle this on your own, and if he won't let you bring your lil girl.... involve the law as well..... maybe even contact a woman's shelter....

- Response by ladygodivarides, A Creative, Female, 46-55, Other Profession

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This is something that must be taken to a lawyer.

- Response by myrtletyrtle, A Cool Mom, Female, 46-55, Who Cares?

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I am sorry to tell you that you cannot.

Unless a court orders otherwise - as part of a divorce, custody or protective proceeding - he has equal rights to physical custody as you do.


Tomorrow is Monday. Contact a lawyer about divorce or legal separation, and then buckle up for a rough ride.

Depending on your state's laws, once he realizes what you are doing, he will likely bring his own action for custody to minimize his "support" obligations. The formula generally is that the more time a parent gets with a child, the less he (or she) pays in support.



- Response by A Career Man, Male, 46-55

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The courts can decide temporary custody prior to the completion of the divorce. Generally, primary custody of such a young child is given to the mother, especially if the child continues to breast feed at all. Also, primary custody would likely to be temporarily awarded if you are now the primary care giver.

Most courts now a days try to give joint custody, assuming both parents are fit it is likely in the best interests of the child to have involvement of both parents.

These are all generalizations, if there are abuse, mental health or other issues, or one party has an incredibly good lawyer and you do not, it can go the other way.

If your family lives near by and you are indeed worried about your safety or the safety of your daughter, it may be easiest to just pack up your things and bring her with you to them. That should be seen as a stable environment, whereas a hotel would likely not. If your family is too far away, consider renting an apartment or 2 rooms with a close friend where you can give your girl a stable home.

If he hasn't been abusive in the past, why are you worried that he would be now?

If there is really no risk of abuse or undue stress to your daughter, and you want to stay in your current residence and have him leave, it may be best to start the separation hearings while you are still living in your joint home. I am not sure about that though, so check with a lawyer.



- Response by milla, A Thinker, Female, 36-45

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this takes planning. it also takes some money, if you dont have family to help you. .....you need to see a lawyer

- Response by hotair, A Father Figure, Male, 66 or older, New Orleans, Transportation

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somehow I get the feeling if we talked to your husband we would hear a much different story. Why are you afraid he'll hurt your daughter if he's not physically abusive?

- Response by lmarks, A Life of the Party, Male, 29-35, Los Angeles, Who Cares?

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call the cops and tell them to help you get custody of the child. hubby cannot do much. he is the bread winner and cannot take care of the child. most of the times woman have custody until told by the courts when they are not .

- Response by amandasboy, A Father Figure, Male, Who Cares?, Other Profession

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Unless you are HONESTLY afraid he will hurt her, you have no right to take a child away from it's loving parent.

Do unto others....

- Response by sharonpeters, A Thinker, Female, 29-35, Other Profession

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