Her husband stopped taking his meds for PTSD (several times) from his time in Iraq. He was committed to some kind of institution last year. Recently he got physically violent with our other sister (who was visiting from out of state). The police have been called to their house several times. This last time he was arrested but let go. Both of my sisters got a temp restraining order against him and are driving out of the state right now with the baby. He has shredded their licenses, credit/debit cards and taken their cell phones. What can my sister do to protect herself and her newborn from him in the new state? She will have to go back to their home state for a court date for the permanent restraining order. Is it legal for her to keep the baby out of the state and away from her husband?
Divorce / Separation Lawyer
This is a really complex situation and your sister should contact an attorney ASAP. If your sister got custody via the restraining order then it is fine that she leave the state temporarily. However if the restraining order does not give her custody of the minor child then she should probably not be leaving the state. If this is just an emergency order she will need to come back soon for the hearing, which is usually ten days after the emergency order is issued. Even with a restraining order your sister should start an action in the probate and family court. If she does not want to start the divorce process then she can file a complaint for custody pursuant to G.L. 209c and an emergency motion for custody with permission to remove the child from the Commonwealth. If your sister does want a divorce then she can file a complaint for divorce and an emergency motion for custody and permission to remove the child from the Commonwealth. Your sister also needs to carefully safety plan. She needs to make sure that her Husband does not know where she is staying. If anything happens and your sister feels she's in danger, encourage her to call 911.
Melissa Levine is a licensed attorney in Massachusetts. All answers are based on Massachusetts law and should not be construed as legal advice. No attorney-client relationship is formed by Attorney Levine answering your question. It is advisable to consult with an attorney about your personal legal concerns.
6 lawyers agree
Child Custody Lawyer
Agree with counsel above. You cannot solicit legal advice on this issue unless the attorney has all of the important details and is able to make a very informed decision. Contact an attorney in MA regarding this issue. It may be appropriate to also contact an attorney in the state that you have fled to, but wait and see what counsel suggests.
Whatever you do, do NOT just guess at what you should do. If you handle this wrong, you could subject yourself to liability and/or needless issues down the road.
Christine G. DeBernardis, Esq. (866) 308-3086 (603) 373-0545 NH (978) 777-5393 MA www.cgdlegal.com This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.
Divorce / Separation Lawyer
As my colleagues have advised, contact an attorney to assist you (your sister) navigate through this complicated situation. Removing the child from the state temporarily is not of itself unlawful--provided there is no custody order prohibiting it. You should act first (through counsel) to get an award of custody because in the event the husband gets one first, you could have a problem. She can apply in her resident state (local Probate & Family court in the county of residence), or if her stay extends to six months or more, she can apply in the new state under interstate relocation statutes (UCCJEA). Both/either of these are complicated procedures with much at stake. She should be aware that if she or her husband files for divorce in MA, it will constitute a "custody proceeding" for purposes of the interstate custody application and she will be precluded from applying for custody in another state. So she can return to MA and file for divorce/custody before her husband takes legal action; or she can remain in another state for at least six months with the child and apply under UCCJEA for custody ---and hope and pray her husband takes no legal action in the interim. I do not advise you undertake these by yourself. I am representing a client in a similar situation right now, and I can assure you--it can get complicated. Do yourself a favor and hire a lawyer! Sooner better than later.
This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney