Thank you for allowing me an opportunity to answer your interesting
question. As you can see by reading our disclaimer below we cannot
offer professional advice (i.e. medical, legal, etc) in this forum.
What we can do however is point out what is publicly available and
explain some issues related to our research.
One can never predict with absolute certainty what any court will do
in any given situation and this is especially true with civil and
chancery cases including those where child custody and divorce are
concerned. Different courts in different jurisdictions and in
different states view these issues with varying degrees of interest.
In fact, some decisions may vary from Judge to Judge in the same
jurisdiction depending on his or her interpretation of the law and
personal or professional policies.
Child custody is one of the most controversial issues of family court.
Many courts that once typically awarded custody of the children to
their mother in a divorce proceeding (tender years doctrine) now give
much greater consideration to the fathers than ever before. Still
other courts that would never have entertained the idea of shared
custody just a few years ago are now leaning toward that as a viable
As a general rule courts consider several factors in determining
custody of the children. Here are some examples:
-- Which parent has been the primary care giver/nurturer of the child?
-- The parenting skills of each parent and their relative strengths
and weaknesses including the ability of each parent to provide for any
special needs of the child
-- The mental and physical health of the parents
-- Whether there has been domestic violence in the family
-- Work schedules and child care plans of each parent
-- The child?s interaction with brothers, sisters and members of the
-- The child?s wishes, depending on the age of the child
-- The ability of each parent to cooperate with the other and to
encourage a relationship with the other parent, when it is safe to do
-- If the parents are living separately, how the child is doing
emotionally, socially and in school
Some courts (states, jurisdictions, judges) also consider:
-- The chronological and intellectual age of the child
-- The respective home environments offered by each party
-- The age, character, and emotional and financial stability of each party.
-- A report and recommendation of any expert witnesses or other
-- and possibly other factors
As you can see the main focus in determining custody of children is
primarily related to "the present" rather than the past, and the
child?s future. Whatever alleged marital icompatibilities that
ultimately led to the divorce in the first place "may" not be
considered (though abandonment of THE FAMILY ? not just the spouse -
if it can be proven, may be considered a factor in some courts).
Abandonment would of course besmirch your character and this ?could?
be a factor depending on the court's views and the jurisdictional
In the end the courts must be assured that its decision will result in
the child being properly cared for, healthfully maintained, morally
and academically educated and fundamentally kept safe so that he or
she is protected and ideally becomes a well-reared, productive
Substance abuse, addiction and violations of the law of the manner you
described are CERTAINLY factors that just about any court would review
with great scrutiny in making this decision while infidelity may or
may not be. Going into a hearing with a history of documented
substance abuse is not an advantageous position to be in for a person
who is planning to be granted legal custody of his child in court.
While the court may (or may not) frown upon the actions of a woman who
?breaks up? her marriage to take up with another man with the
expectation of taking her child in tow, there is always a reasonable
benefit of the doubt for that act. I can?t envision how the court
would extend this same benefit of the doubt for documented substance
abuse and violations of the law. In fact, the opposite may be true in
your case. In several states addiction, substance abuse and felony
violations of the law are actually GROUNDS for divorce and the court
holds no penalties for those who choose to dissolve their marriage
based on those acts. On the other hand, infidelity is too but it
typically poses little (if any) danger to anyone.
?Can your husband take your child away from you JUST for leaving him??
No, not usually; especially if he has nothing else of greater
substance to allege against you. He would typically have to have some
evidence that you are an unfit parent, your are incapable or
incompetent, that you are a danger to yourself or others or that he is
the more desirable choice of the two of you to have custody of the
?Can your husband take your child away from you for leaving him for another man??
No, probably not. Unless he convinces the court that your liaison with
this other man is or was somehow a detriment to the child or that you
abandoned the family and caused harm to the child or the family unit
(by neglecting the child or exposing the child to unhealthy, immoral,
or dangerous acts, etc) the fact that you found ?someone new? may
never be considered.
?Can your husband take your child away??
You bet. It happens all the time. If the two of you are still together
(you have not filed any papers with the court indicating otherwise)
your husband has as much right to access the child as you do and he
can, at his discretion, take the child anywhere he wants to with
absolute legal authority. What?s more, there?s nothing you can do
about it. This is why courts have ?legal separations?, injunctions and
ex-parte orders that temporarily remand the custody of children to one
parent or the other and sometimes even establish temporary, but
limited, visitation rules (like supervised visitation for example).
This keeps one parent from legally whisking a child away until the
court can consider the divorce suit.
This is nothing derogatory about you, but knowing people like I do and
having had years of experience in court myself, I am fully aware that
no matter how much you THINK you know about a situation there is
always another side to it all. Assuming that you have nothing equally
disturbing in your past as you have described about your husband?s I?d
have to guess ? and that?s what it is, a guess, because that?s all one
can do when predicting a court?s decisions ? that you have little to
worry about in terms of child custody. If that?s all he?s ?got on
you?, you?re probably in a better position than he is ? and after all,
the court will not only have to decide who is BEST according to the
needs of the child, but they will come to their conclusion in part
based on who was WORST according to the laws of the state and the
policies of the court. The bottom line is that the primary
consideration of the court will be, "What is in the best interest of
the child?" and little more.
You can probably learn more about your particular jurisdiction by
looking for your state on the left side of this page:
I strongly recommend you pose this question to a an attorney licensed
to practice law in your area and who can tell you for certain what the
potential is according to your situation. Alternatively you can check
with legal aid in your area (if you qualify) and perhaps get some
legal asistance free of charge and maybe even conveniently over the
Below you will find that I have carefully defined my search strategy
for you in the event that you need to search for more information. By
following the same type of searches that I did you may be able to
enhance the research I have provided even further. I hope you find
that my research exceeds your expectations. If you have any questions
about my research please post a clarification request prior to rating
the answer. Otherwise, I welcome your rating and your final comments
and I look forward to working with you again in the near future. Thank
you for bringing your question to us.
Tutuzdad ? Google Answers Researcher
HOW DECISIONS ABOUT CHILD CUSTODY ARE MADE
CUSTODY FACTORS IN ALABAMA
CUSTODY FACTORS IN MINNESOTA
DIVORCENET ? UTAH
SEARCH ENGINES USED:
SEARCH TERMS USED: