Legal Question: Custody battles!

[Razgovory]

My sister's marriage is on the rocks and she and her husband may split up.  He was the one who dropped the bomb on her.  She's quite broken up.  Unfortunately they also have a daughter together.  If they separate prior to a divorce how does custody work?  My sis can't drive and has no job.  She does go to school at a community college.  She's under the impression that she can't leave the state (to say, move back with her family that is me and my parents), with her daughter without her husband's permission.  My parents think that is bull, I don't know enough about the law to make a pronouncement one way or another.  While this is a legal question, I don't think many of the lawyers here do family law but I think we have a few people who have some experience in this area so anyone can answer (and let's be honest, If I said you couldn't answer would anyone heed my request?).

[Eddie Teach]

her family that is me and my parents),

And your brother, much as you may wish otherwise.

[The Brain]

Can't give meaningful advice but I wish your family the best of luck in this.

[MadImmortalMan]

The thing about leaving the state without his permission is definitely a thing I've heard before, but I think it was always part of an agreed-to divorce settlement. It may be standard for a pre-settlement period in some states. So I wouldn't necessarily think she's nuts for thinking that. As for custody, she's got the advantage over the father by default I would guess.

[Admiral Yi]

Yeah, I would think absent a court order to the contrary she can do whatever she wants. 

But to be on the safe side she should try to find some free legal hot line, like one for women.

[Razgovory]

her family that is me and my parents),

And your brother, much as you may wish otherwise.

He doesn't live in the same house.

[Barrister]

The trouble with leaving the state is that it can be seen as frustrating the other parent's access to the child.

I both don't practice in this area any longer, and practice in a different jurisdiction.  Your sister really should try to get some legal advice in-state.

Good luck to them.  Raz has posted pics of his niece before - she's very cute.

[dps]

What state are they currently living in?  That will have a huge impact on the situation.

[Razgovory]

What state are they currently living in?  That will have a huge impact on the situation.

Wisconsin.  I'm in Missouri.

[merithyn]

If she moves without her husband's or the court's consent,  she could actually be seen as trying to cause an undue burden on her husband's relationship with his daughter. That could end very badly for her.  Better to get permission in this case.

[Martinus]

Good luck to them.  Raz has posted pics of his niece before - she's very cute.

Ok, grallon. 

[Ideologue]

Check out Wisconsin Code section 948.31.  Relevant part reproduced below:

"(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class F felony:
(a) Intentionally conceals a child from the child's other parent.
(b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in s. 822.02 (14).
(c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period. "

Parents can generally take their kids wherever they want, but I imagine that process and a court order would come quickly in the case of sis absconding.  (As regards process, also note subsection (a).)

Sis should also be aware of the uniform jurisdictional laws, which would generally mean that any custody dispute will be heard in Wisconsin courts.

Anyway, the basic process for custody is filing for separation and getting a custody order.  (Prior to a final order, an emergency or temporary order may be issued.)  The custody order will determine the custody arrangements.  They can be amended by the court by petition of a party.  It's probably best to lawyer up in a situation like this, because family courts really don't like dealing with pro se litigants, and even if it's not particularly acrimonious, Wisconsin lawyers will be able to (comparatively) quickly negotiate and draft a custody agreement, and explain it to both of them in terms they understand.

There is no absolute ban on one parent moving to another state with the child.  A court may well grant leave to do so.  It's just more complicated with divorces.

P.S. as you are fond of pointing out, as regards this issue, I am not a lawyer.

[Grey Fox]

Custody battles are complicated. I think my custody battle isn't even settled.

[Admiral Yi]

Seems to me based on what Ide posted that she can take the kid to Missouri before there's a custody order, as long as she tells the dude.

[dps]

Seems to me based on what Ide posted that she can take the kid to Missouri before there's a custody order, as long as she tells the dude.

Seems it's a bit more specific than that.  As I read it, she'd not only have to tell him she's taking the child out of state, but also exactly where they're going, and she would have to do so before she's even served with divorce papers, not just before there's a custody order.