*Updated in September 2019
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 or camp. This may seem like a good idea, but she was 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 obligation to return the children back after two months?
Legal Separation vs. Divorce: Can a Husband or Wife Take a Child without Permission?
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, and the parties share joint custody as a matter of law, either the husband or the wife can take 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 for a prolonged period 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 legal 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. Having a written agreement can help avoid misunderstandings and unreasonable positions that can lead to a court conflict later on.