I haven’t been living with my son for a while, will this hurt my chance of gaining custody?

My (soon to be ex) wife and I were living apart for awhile after some relationship troubles in which I was staying at a hotel. It’s now ending in a divorce, and we have to figure out who will get custody of our son. Does the fact I moved out hurt my chances of getting full custody?

San Diego, CA -

Attorney Answers (3)

Rebekah Ryan Main

Rebekah Ryan Main

Child Custody Lawyer - Rancho Cucamonga, CA

The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children’s health, safety and well being to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents.

Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny a parent’s right to custody or visitation just because they were never married to the other parent, or because they or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation.

To decide what is best for a child, the court will consider:

the age of the child,
the health of the child,
the emotional ties between the parents and the child,
the ability of the parents to care for the child,
history of family violence and/or substance abuse, and
the child’s ties to school, home, and his or her community.

The “status quo” is pretty persuasive when trying to determine what is in the best interest of a child. Also key is your child’s age and desires. This is a very fact specific question and a consult with an experienced family lawyer is in order.

Best of luck to you.

Attorney Rebekah Ryan Main

If you found this answer helpful, let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated.

This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges.

This response is intended to be a general statement of law, should not be relied upon as legal advice, does not... more
Mary Katherine Brown

Mary Katherine Brown

Family Law Attorney - Brooklyn, NY

All other things being equal, no, that alone will not determine custody. On the other hand, whether you have good legal counsel or not can make a huge difference in the outcome of a custody dispute. As such, I strongly recommend you consult with a local attorney to review all your rights, options and obligations before you take any further action. Sometimes a telephone consult can provide you with sufficient information to plan for the future. You can find attorneys by searching among the profiles here on Avvo. Good luck!

Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: marykatherinebrown@... more
Edna Carroll Straus

Edna Carroll Straus

Family Law Attorney - San Juan Capistrano, CA

Why would you want "full custody" ? Do yo mean primary physical custody? Or are you referring to visitant/time share? or-- God forbid--are you looking to minimize support?

In any case moving out is pretty much irrelevant.--and not uncommon . It is not "abandonment-not in California.

Related Advice

Questions? An attorney can help.

Ask a Question
Free & anonymous.
Find a Lawyer
Free. No commitment.