Page 60 - 2011 Guide to Family Violence Laws

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If my husband or the father of my
children is arrested or ordered out
of the house, who has custody of
the children?
Unless there is a court order about
custody that says otherwise, you
and the father share custody of the
children, even if he is arrested. If
you do not want to share custody
with the father of your children, you
will need a court order giving you
sole custody. A judge may order
that you have sole custody of the
children as part of a restraining
order or divorce. If you get a
protective order from the criminal
court, the judge could order your
partner to stay away from the
children, but he or she will not
usually make any decisions about
If the father of my child
physically takes my child, how
can I get my child back?
Legally, if there are no court orders,
you and the father of the child
probably have joint legal custody
even if the child has been living with
you. You can try to take your child
back, if you can do so without
getting hurt or committing a crime.
(You should keep in mind that it
isn't good for any child to be
grabbed back and forth by her/his
If you ask the police to help you get
your child back, they may help you
in some circumstances. The
assistance you get from the police
will depend on the specific facts of
your situation.
Whether you are married to the
father or not, the best way to resolve
who has legal custody is to go to
Can my husband or the father of
my child get custody in court?
Many times, “getting custody” is
used as a threat when people are
fighting. The important thing to
remember is that, if the court
becomes involved in determining
custody, the judge must consider
"the best interests of the child." If
the court views you as the primary
parent, and you have not been
abusive to your child, then it is not
likely that you will lose custody of
your child. However, the father has
the same right to ask for custody
that you do. If your husband or the
father of your child does go to court
to try to gain custody against your
wishes, it will be helpful to have a
lawyer to represent you. The judge
may appoint a lawyer to represent
your child.
If I get custody of the children,
will the court give the father
visitation rights?
Just as with custody, you will need
a court order to set up visitation.
Even if the father of your children
has abused you, it is very likely that
he will be given the opportunity to
visit his children. However, if the
father has abused the children, a
judge may not allow him to see
Even if the father has the right to
visit his children, you can request