Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“Let me start by saying that I have joint custody of my 12-year-old son, who has resided with his father and his stepmother in Arizona for 3 years now. However, there is an impending divorce now with the two of them, and his soon to be ex wife has admitted to me that my ex husband is an alcoholic, and that it has gotten out of hand. Adding to that, he has physically assaulted her during the time of their marriage on a few occasions. I happen to believe this whole-heartedly, because he was physically abusive to me when we were married, and was actually arrested once for it. No physical harm has been done to my son in any way, not when he was with me, and according to the stepmother-not any there.
To compound everything, my ex husband admitted to his present wife that he is having an affair with another woman and is ending the marriage.
My primary concern of course is my son and his well-being. I think that he should be removed from this scenario, and , as his mother, do I have the right to do so? I honestly have his best interests at heart, I know he’s been established in a stable home for 3 years there now, but judging by the actions of my ex-husband, behaving irresponsibly, should I remove my son? I do not believe that my ex will agree to a mediation, I feel that my only other option if he refuses to let me take our son for now, would be to drag this into the courts – whether it be a referee hearing, or what not. . What do you think?”The three years that your son has been with his father does seem to establish the status quo – the way things are. If there is a custody and visitation order that you are not following, this “status quo” might make it difficult for you to simply remove your son. If your ex does not agree to changing the timesharing arrangement, your most legal recourse would be filing papers with the Court of competent jurisdiction to modify custody and visitation. Cleverly crafted paperwork might get a Court to issue some type of emergency orders to give you temporary physical custody if your son is in actual danger. If no temporary orders issue, and you and the ex cannot agree, then you would be heading for a full length custody and visitaiton case.
Question: That’s the legal bit. You asked me what I think (and thank you for that).
Answer:
Exes and soon-to-be-exes often say self-serving and harmful things about their exes and soon-to-be-exes. Sure it would make your ex’s life more difficult, and his resources and nerve would be spread thinner, if he was fighting a two-front war. But the only person’s “side” you should be on is your son’s. Let your actions be guided by his best interests. If he is in harm’s way, damn straight rise up to protect him with whatever you got. If not, think about what you can do to help him get through what will no doubt be another difficult chapter in his life.
