If my husband wants me to leave our shared apartment, che do anything to have me kicked out and how will it be decided who gets my daughter?

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If my husband wants me to leave our shared apartment, che do anything to have me kicked out and how will it be decided who gets my daughter?

My husband and I are fighting and will most likely split up. He threatened to call the police if I refused to leave my home and refused to let me have my daughter. If he were to call the police how will it be decided who stays and who goes, and who gets to have my daughter?

Asked on November 1, 2011 under Family Law, Texas

Answers:

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

Answered 9 years ago | Contributor

If you are married and there are no custody orders or property division orders in place, then you don't have to leave the apartment or your daughter.  The home and its contents are community property until a court says otherwise.  If there are no custody papers in place, then you both have equal and the same access to your daughter.  He can threaten to call the police, but absent a court order, most likely what will happen is the police will tell him this is a civil matter and he'll need to take it up with a judge.  It sounds like he's bullying you a bit and he's trying to trick you into "abandoning" your daughter.  If you leave and do not take your daughter, he could later argue that you voluntarily left her behind and that should be a basis for granting him custody.  No one likes filing a lawsuit, but if you are concerned about an uncertain future, then you may want to consider being the one who files for divorce and taking charge of this situation.  You can also petition the court for temporary orders to grant you exclusive use of the apartment and temporary custody of your child.  Once there is an order, then the police can come out to do a civil stand-by to enforce the court's orders and require him to leave.


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