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FRANCE123 · May 23, 2012, 10:48 PM

I live in Texas and I was wondering if I take my 2 children to a family members house what can he do? A police officer told me I can go and he can't do anything because they are in my care. His family is always talking bad about me and sending hurtful texts. I told him we are over too many times but he doesn't understand and he always has something under his sleeve. Also he said the family member I will stay with, he will get the fire Marshalls on them for their house (its new) because his father knows them. And that his grandmother will buy the house,(I'm not sure how that works). I'm tired of him because he says I don't do anything and I don't watch the kids while he's at work when that's all I do. Thanks!

joypulv · May 24, 2012, 12:58 AM

Have you ever formalized the marriage? Is his name on the birth certificates? Do you want a divorce?
His threats about the house are not something you can act upon until he actually tries to follow through. If his threats were more immediate and involved violence, you could get a restraining order. If you do go, he would have to petition Family Court for custody or shared custody. But you might want to consult a family law attorney.
From wikipedia:
Texas
Common-law marriage is known as an "informal marriage", which can be established either by declaration (registering at the county courthouse without having a ceremony),[12] or by meeting a 3-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. In the actual wording of the law there is no specification on the length of time that a couple must cohabitate to meet the second requirement of the 3-prong test. Under Texas law there is no required period of cohabitation and an informal marriage can occur if the couple lives together one day if the other elements, (an agreement to be married and holding out as married to the public) have also occurred. Likewise a couple can live together for 50 years and if they never have an agreement to be married, or hold themselves out to the public as married, their 50 year cohabitation will not make them informally married. If a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship there is a legal presumption that they were never informally married, but this presumption is rebuttable. In other words, even after two years a party to the relationship, or another interested party such as their estate, can seek to establish the marriage if they can overcome the presumption. Because this rule is only a presumption, and not a statute of limitations, a person in Texas that could be informally married should always go through a divorce proceeding when the relationship ceases or face possible serious legal repercussions.[13]

ScottGem · May 24, 2012, 03:56 AM

You leave and file in court immediately for custody of the kids and child support. You also file for a restraining order due to his threats.

FRANCE123 · May 24, 2012, 06:08 AM

Yes I do want a divorce I just can't take it anymore. His name is on both of the birth certificates. We have been together since Jan 08 and lived together since late Aug 08 but we haven't got papers or really got married. We're always arguing and it gets physical sometimes and the kids see it. The relationship isn't going to get any better

ScottGem · May 24, 2012, 06:23 AM

You can't get a divorce if you were never married. Even if you do qualify as a common law marriage under the conditions Joy listed, you can dissolve the marriage by just moving out.

What you will need to go to court over is custody of the children and child support.

FRANCE123 · May 24, 2012, 09:24 AM

Ah, I was halfway asleep when I read it. Thanks. He and his family are telling me that we would go through the divorce process because he introduces me as his wife. Right now still afraid to leave, and I don't think I have a place to go anymore.

tickle · May 24, 2012, 09:31 AM

Originally Posted by FRANCE123

Ah, I was halfway asleep when I read it. Thanks. He and his family are telling me that we would go through the divorce process because he introduces me as his wife. Right now still afraid to leave, and I don't think I have a place to go anymore.

You do have a place to go, they are called womens' shelters and there a restraining orders, through the police. To keep him away. That is, if he can even find you in a shelter.

Maria Garcia · May 25, 2012, 01:51 PM

FRANCE123_ I was in a similar situation as you are right now. He can not hold you there against your will! He CAN NOT take your kids from you unless he has a court order stating that he has full custody or joint custody! It does not matter if his name is on your kids birth certificate or not! He has to have full custody granted in a court AND IF HE DOES TRY TO TAKE YOUR KIDS then he can be arrested for kidnapping. If you feel threatened by him or his family then get a restraining order against him and his family members.If your still not sure about your rights then seek a lawyer. I'm sure there are legal aid lawyers in every state if you can not afford one. Don't let him brain wash you! Learn your rights.

Fr_Chuck · May 25, 2012, 02:10 PM

First you are not married, if this was a valid common law marriage you would have to get a divorce, ( which could help since in a divorce you may even get spousal support) but Texas requires you to register your common law marriage since 1995.

You can leave him and file for custody of the kids. Threats of fire marshal and more is just that, a fire marshal will not do anything to a new home ( have no rights to actually) if it was a business they can come in and inspect but not a home, without cause.

Fr_Chuck · May 25, 2012, 02:12 PM

Originally Posted by Maria Garcia

FRANCE123_ i was in a similar situation as you are right now. He can not hold you there against your will! He CAN NOT take your kids from you unless he has a court order stating that he has full custody or joint custody!!It does not matter if his name is on your kids birth certificate or not!! He has to have full custody granted in a court AND IF HE DOES TRY TO TAKE YOUR KIDS then he can be arrested for kidnapping. if you feel threatened by him or his family then get a restraining order against him and his family members.If your still not sure about your rights then seek a lawyer. im sure there are legal aid lawyers in every state if you can not afford one. dont let him brain wash you!! learn your rights.

Are you just making this up as you go or what ? If he is on the birth certificate they are HIS kids and unless there is a custody order he has as much legal right to take HIS kids as she does to take HER kids.

And no he can not be arrested for kidnapping kids if he is on the birth certificate.

Please do not just make things up if you do not know the law.

ScottGem · May 25, 2012, 02:33 PM

Maria, I'm sorry but your answer here is not accurate. Until a court order has been issued giving one parent primary or full custody, then they have equal custody. This means EITHER parent can take the children and keep them until a court order is obtained.

A parent can only be charged with kidnapping if they are in defiance of a court order or if they try try to hide the children from the other parent.

We take pride in the accuracy of the advice we give out here. Please be more careful that your answers are accurate.

Maria Garcia · May 26, 2012, 05:29 AM

Originally Posted by Fr_Chuck

Are you just making this up as you go or what ? If he is on the birth certificate they are HIS kids and unless there is a custody order he has as much legal right to take HIS kids as she does to take HER kids.

And no he can not be arrested for kidnapping kids if he is on the birth certificate.

Please do not just make things up if you do not know the law.

FR_CHUCK first of all I am not making things up as I go! I live in Missouri I've taking my EX to court about the same situation the only thing is I was married to my ex. (2nd) now if you go to any police officer their going to tell you he has every right because he is on the birth certificate and that is NOT true! My lawyer and the judge told him **quote** ANYONE can sign a birth certiificate IF they believe the child is their's BUT Until they have a blood test stating that they are the parent then they have NO right to take that child anywhere without permission from the mother! About him being charged for kidnapping! AGAIN as I said WHAT MY LAWYER AND JUDGE said since he has not be proven to be the legal parent (besides having his name on BC) he COULD be arrested for taking that child WITHOUT the mothers permission!! Now maybe every state is different but Don't SAY I'm making things up if you was not in the court room with me OK!!

ScottGem · May 26, 2012, 05:49 AM

Originally Posted by Maria Garcia

FR_CHUCK first of all i am not making things up as i go! i live in missouri ive takin my EX to court about the same situation the only thing is i was married to my ex. (2nd) now if you go to any police officer their going to tell you he has every right because he is on the birth certificate and that is NOT true! my lawyer and the judge told him **quote** ANYONE can sign a birth certiificate IF they believe the child is their's BUT UNTILL they have a blood test stating that they are the parent then they have NO right to take that child anywhere without permission from the mother!! about him being charged for kidnapping!! AGAIN as i said WHAT MY LAWYER AND JUDGE said since he has not be proven to be the legal parent (besides having his name on BC) he COULD be arrested for taking that child WITHOUT the mothers permission!!! now maybe every state is different but DONT SAY im making things up if you was not in the court room with me ok!!!!

Ok, so you are not making things up. You just either misunderstood or you were given misinformation.

Under MO law (Section 210.822) a man is presumed to be the father if he was married to the mother when the child was born. Also, under MO law, a father doesn't sign the birth certificate. If they were married, the hospital lists the father on the birth certificate. If the child was born out of wedlock, the parents have to sign an Acknowledgement of Paternity to get the father listed on the birth certificate. So if a father is listed that person has equal rights to the child until and unless paternity is successfully challenged or there is a court order to the contrary. So I don 't know why the judge said what you claim he said. But the law is clear. http://www.dna-testing-paternity.com...paternity-laws

AK lawyer · May 26, 2012, 05:54 AM

Originally Posted by Maria Garcia

... my lawyer and the judge told him **quote**... UNTILL they have a blood test stating that they are the parent then they have NO right to take that child anywhere without permission from the mother!!...

Yes, I realize that we were not in that Missouri courtroom. Was your ex husband convicted of such a crime or otherwise penalized by the court? If not, I believe that the lawer and the judge were either mistaken (It's what lawyers call "obiter dictum".) or the statement you are quoting was taken out of context.