Are my custody papers void because I am still married to my child’s father?

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Are my custody papers void because I am still married to my child’s father?

My husband moved out of our house 3 months ago and I filed so he wouldn’t be able to take our child. He recently defaulted on the papers but now he is telling me that the custody papers are wrong because we are still married and married people cannot have separate custody. No one has filed for separation or divorce. I was under the impression that I could file without filing for dissolution. Is this true?

Asked on January 15, 2012 under Family Law, California

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

First of all, he is wrong. If you filed for child custody, you did this because you are separated. Separation (non-legal non court filed separation) means you are living separate and apart with no chance of reconciliation. So you are technically separated even though you did not file for legal separation or divorce. So if there is a valid enforceable court ordered child custody agreement in place and he defaulted, you can take him to court for contempt of the order.


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