Q: Me and my spouse are married but living separated. Can I legally take my daughter and not return her to her mother?
I have called CPS and they are doing nothing to help me remove my daughter from a very bad living situation.
A: It depends on whether a formal custody order has been entered. If a custody order has been entered, you must abide by the terms of said custody order; if you want to change that custody order (so that you would have primary custody of the child), you will need to file an action to change the custody arrangement. If a custody order has NOT been entered (i.e., you had the child together, one of you moved out of the marital residence, but neither you or your spouse ever went to court and obtained a formal separation/custody order), then you and your spouse have equal rights to the child and either party may take the child without needing the permission of the other party. However, it is important to not appear to be kidnapping the child, so avoid doing anything suspicious (like removing your child from the state where your spouse lives, refusing to let your spouse talk to the child, or let your spouse know where the child is located), as it sounds like this matter will eventually bubble-over into a divorce and you do not want to look like a bad person in front of the judge when it comes time to make decisions regarding who should be the primary custodian. I'd highly recommend that you speak with an experienced family law attorney in your area prior to taking any action, so that they can advise you of your best course of action after reviewing the specific facts of your scenario.
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