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Can i get divorce and full custody of my daughter if my husband is in jail and will be there for a while ?

Danville, IL |

my husband and i have been seperated since january 7 of 2011 he was abusive and got addicted to vicadins and has been to rehab.. he hasnt seen my daughter but a couple times since then he as not paid any child support or supported her in any way shape or form.. i am now with someone new and are planning a wedding but my husband never wanted to grant me my divorce .now hes in jail im hoping i can file and get full custody of my daughter so my fiance can adopt her. he has been in her life since august of 2011 and she calls him dad.. she doesnt even know my husband as her father seeing as she will be 3 in may. i was just wondering if their is anyway i can file on my own and possibly get granted full custody without it being a nasty mess. beacuse if he does get out i dont trust him with her

Attorney Answers 3


This forum is for simple legal questions. Your issue is very complex. Yes you can file for divorce. Part of divorce does not include termination of parental rights. You husband would have to give up his parental rights in a separate action and your boyfriend would have to agree to adopt. Having full custody does not mean he is no longer her father or that he has no parental rights. You cannot force him to terminate his parental rights only the state or a court can do that. Go talk to a family law attorney who handles divorce and adoption. You do not seem to understand how this all works.

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yes, you can get divorced. if he was convicted of a felony, that is a sufficient legal reason--grounds--for divorce. if not, then use irreconcilable differences with a two year separation.

yes you could get sole custody. there is no such thing as full custody.

the adoption is a separate issue. you have to prove your husband unfit as that term is defined in the illinois adoption act and that the adoption is in the best interest of the child.

you would be much better off seeing a lawyer about all this.

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1 comment

Judy A. Goldstein

Judy A. Goldstein


This same question was posted by the asker very recently.


Divorcing your husband and getting custody while he is incarcerated is all too possible. Having your daughter call the new guy dad before an adoption and while you are still married to her actual father is not good for her. It could set a precedent, that as you change husbands she gets new dads. The adoption process when you know where he is will likely not consent is not likely to be sucessful. As I am often in Court call my assistant Dan London at 312-807-3990 to set up a private telephone consultation. At the consultation we can discuss the confidential details we need to craft a strategic plan. These details should not be broadcast over the Internet.

This is a general answer and does not address the specifics of your individual case. To give the specific answer you need our firm needs you to come in for a consultation.

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