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What are my chance to have custody of my children if i am not working?

Ellenwood, GA |

In a divorce case if i am not working will i still have a chance to have custody of my children?I took care of them ever since they were born. And if i do so will i be able to take them out of the country without their dad consent?

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Attorney answers 5


You do not need to be working to get custody of your children. You simply need to be able to show that you can provide for the children, whether by living with a relative or getting help from someone else. Once you have primary custody of the children, you can take the children anywhere without the consent of the other parent; however, when they do move, it is considered a "change of circumstances" and could serve as the basis for a modification action, in which event the Judge will have to consider whether taking them out of the country is in their best interests.

This response to your query is a general explanation of legal rights and procedures and does not constitute legal advice. Nor does it establish an attorney-client relationship between the individual posting the question and the attorney providing the answer.


While a finding that a parent should be permitted to have legal custody of their offspring may not be based in part on that parent's financial ability to care for the child, a judicial finding re: physical custody would more likely be based on financial ability (i.e., ability to care for the children, provide them with sufficient necessities of life, home, etc.). However, a judge usually looks at the totality of the circumstances to decide what is in the best interests of the minor children, with financial ability being only one of a multitude of factors considered.

Insofar as being permitted to take the children out of the country, that depends in large part on what the custodial arrangements are (i.e., who has legal vs. physical custody, whether joint or sole), and whether there is anything the US State Dept. requires to be shown before a child in a non-marriage relationship (e.g., divorce, step-parent, never-married parents, etc.) is permitted to leave this country. Depending on the particular terms of any settlement agreement between the parties in a divorce case, for example, there may be a provision that states what types of situations (e.g., major medical, passports, etc.) may require joint approval, prior court approval, etc..


The decision regarding custody is based on the "what's in the child's best interest" standard, and depends on a large number of factors. Being unemployed is not a bar to custody, but since the ability to provide is a factor, your employment status will be taken into consideration.

The rules regarding transporting children out of the state/country depend on the contents of your custody order. It is impossible to tell you now whether you will be required to take the children out of the country (with or without consent from the other parent).

Hope this answers your questions.

~ Kem Eyo

The above answer is a general explanation of legal rights and procedures. It does not constitute legal advice. Nor does it establish an attorney-client relationship between the individual posting the question and the attorney providing the answer.


You do not need to work to be the custodian. While no one can give you "odds" your odds are far higher with an attorney. As far as leaving the country, that is an issue that has to be decided by the court. Note they cannot get a passport without his consent.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.


The standard that a court will apply in determining custody is what is in the child's (ren's) best interest. Variables that the court will consider is who has historically taken care of the children, taken them to the doctors, taken them to school, who is home with them more, who, in fact, is the primary caretaker of the children. There are other factors as well depending on the age of the children. If you are awarded primary physical custody of the children and have tie breaking decision making then you can move out of the area. You need to provide notice of that move and he can file for modification based on a change of circumstances. However, if you want to travel out of the country you may still require his signature to obtain passports. There are different requirements and you having a court Order may meet those requirements or it may not.

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