If my husband and I have JOINT custody, but he has physical custody (and there is also a history of me fleeing for domestic violence reasons) how can I get physical custody back of my son at least until we go to court over him?


EDIT:
A comment made me realize I should have made things clear. There are NO custody orders in place. By custody I mean he PHYSICALLY has Jacob, because he took him for the weekend once and never brought him back.

Your husband has to agree to let you have physical custody.

Sorry, if he's unagreeble, you may have to wait until the court orders you the physical custody.

Well I do know he doesn't have to *agree* to physical custody as much as I just have to have my son in my arms in a civil way. I was already told that much by my lawyer. For instance, if he lets me take our son to the park in the car...I can leave and just call him to tell him that I have him and won't be bringing him back. It's the same thing he did to me to initially GET physical custody and sadly it's perfectly legal apparently.

And shouldn't the situation be different if I am worried about my child's emotional well being due to his past abuse of me? Hmmm I guess I'm going to need to keep trying the magistrate. I called the sheriff and that's where I was directed.

Gotta love custody battles! *eye roll*

Alright I just talked to the magistrate. They said the same thing, that I can take him if he willingly hands him to me...even if it's not him thinking that he's giving me custody. Basically I could talk him into letting me take Jacob to the park and once he's in my arms I can take him wherever I want to. I don't want to do that, but if it's the only way I get him back I just might have to. I just worry about his safety and well being at my husband's.

Wow, that sounds sketchy. I mean if there are court orders stating that he has full physical custody and you at best only have joint legal custody and visitation rights, I don't see how you could not be in contempt of court by not returning him outside of your visitation agreement days/times.
I realize you state the magistrate told you this but, it just doesn't sound right. I wonder if the magistrate knows full well what the court orders state. If there were no court orders declaring physical custody then sure it's all about whoever the child happens to be with at that point in time. Be very careful.......

I just reread the first post and you don't state anything about court orders for the custody and no details about physical or legal custody just "joint". Be sure you know EXACTLY what the situation is before you do anything like you are talking about.

quote:

If there were no court orders declaring physical custody then sure

"If there were no court orders declaring physical custody then sure"

Ah, see this makes me realize that I worded what I said wrong!! By "physical custody" I only mean that he PHYSICALLY has him, there are absolutely NO court orders declaring it. He asked me to let him take Jake for the weekend to go to his dad's birthday party and then just never brought him back.

My mistake. I thought from my first post here your EX has gotten a CO physical custody.

Don makes perfect sense. Be careful, it sounds like playing with fire.

I think what you need is a Status Quo (sp?) order, that is you want it to be the way it was until the court says otherwise.

In my first divorce my ex had custody of my 2 boys under an RO, the day after the RO ran out the boys (12 & 13 yo) moved in with me, she tried for a Status Quo order and lost because of other things that were going on, but at the age of your son you should have no problems. You also need to see if you need to have an order to let law enforcement help in getting your son as I found out that being granted custody when the other parent still has the kids doesn't mean you will get them with out further court action.

You need to talk to your attorney and soon.

A similar thing happened to me when I lived in NC. My husband pushed me around a little bit, tossed me out of the house, and refused to let me have my children and thenwithin a few days, he had taken my children and moved away, without my permission. It was ok for him to do that - legally - and it would have been ok for me to take them one weekend and never take them back, but I didn't know that and I kept doing what he told me (idiot! I know!!)
anyway, long story short - if you can get your child before papers are filed its easier to keep him. I don't have my children still after 2 years of fighting for them because he took them and he has them and possession is 9/10th of the law...sigh.

You know, I had no idea that this sort of practice was legal...

Now do you know if it matters that a child support court order is in place? Does that make a difference? I've always worried about my ex taking my kids just for the heck of it (you know, punishment to me and such). This is certainly an eye-opener.

Angela

well, I don't know about other states, but in Texas, once you have been to court to get temporary orders (which is required to get a child support order) then you cannot take the kids or "remove them from their primary residence" until a final decree is issues. If the court is involved at all, you can't change their living situation until a final court order. Thats why I've been stuck for the past year since I found out my rights because once anything was filed in the court, I had no choice but to continue on the arrangement we had.