A few days ago, a woman asked an interesting question pertaining to child custody and legal separation. She and her husband are legally separated, but he wants to keep their children for two months during the summer, claiming that their time away will save her money that she would otherwise have to spend on daycare. This may seem like a good idea, but she is concerned that her husband will try to keep their children when she tries to reclaim them at the end of the summer.
"He says he will return them back to me, but I don't trust him," she writes. The real question is this: does he have any legal right to give the children back after two months? Legal separation does not terminate a marriage – it is a specific, court ordained separation in which both spouses are still married but maintain enforceable rights and obligations during their separation. In short, because they are not legally divorced, either spouse can keep the children without each other's consent. Under these circumstances, we urged the woman to write up a legal custody agreement before she allows the children to stay with her husband.
"I assume you have not filed for divorce yet and that means there is currently no agreement in place regarding custody. If there is no agreement in place and no order of custody, either of you can keep the child or children without the consent of the other," wrote an attorney from Wisselman, Harounian & Associates. While this may seem surprising, the fact that the woman and her husband are still married is the very reason he is not obligated to give the children back. While grounds for separation typically resemble the reasons a couple may file for divorce, they are still legally married and not bound by any legal child custody obligations.