Can I get custody of the kids if my wife leaves them?

My wife left 3 months ago and got an
apartment leaving the kids with me is
this a situation where I could be
granted custody?

Asked on March 7, 2016 under Family Law, Indiana


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you do not have orders in place and you are the parent who has the best ability to provide for your children at this juncture, then you could be granted full custody of your kids if your wife leaves them.  She will have a hard time arguing that you are unfit especially when she left them with you voluntarily.
If you already have a final order in place, then your wife will be considered primary until an order that says otherwise.  If the kids are with you a short while longer, then you have a good argument for taking her back to court and asking for full custody on the basis that she has voluntarily left them with you.  Before you do so, however, consult with a local family law attorney to decide the best time to file.  Every judge is a little different in how they approach modifications... so you want to make sure that you are following a precedent that your local judges have already set in order to obtain the best results.

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