Custody at Issue in a Divorce when DSS already has Custody

Recently, I received this question on the blog:

My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a “custody” decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.

Thank you for your help in this matter,

Ryan S.

The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children.  In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child’s return and custody given back to you.


  1. Thomas Wrynn says:

    I am going through a divorce in which the children were removed from the home due to a child death and the house was considered in deplorable conditions. While my ex and her sister were to be charged with unlawful neglect they both pled guilty and my ex was given probation and her sister some other punishment. I have been separated from my ex for 4 plus years and now that I’m filing for divorce, I want my children. However I’ve been told that she may be getting them back due to the fact that she’s their mother and other silly things. My lawyer says that my judge is sympathetic to my plight and this leaves me confused because I would like to know what are my chances of having my kids. She’s not let me spend any time with them aside from court ordered visitations through dss. Right now my children are in Foster care until she has completed a care plan but by the time she has finished it will almost have been a year since they have been in Foster care. What should I expect?

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