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Author Topic: non-married custody situation  (Read 12993 times)

DistressedGrandma

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non-married custody situation
« on: Jul 03, 2012, 02:15:15 PM »
Hi all,

I'm new to this venue. I'm really on here to get knowledge and assistance for my son & my grandson. My sons ex-girlfriend will not allow any of my family, including my son to see his son. She sent him to Georgia with members of her family and she didn't even go. He was down there a month w/o any of the family he's ever known. He's only 4. She finally let me see him while making me promise to not let my own son see him. I could not allow that, my son came for the first visit with his son in over a month. Now, she's on a tirade with me, after I helped her so much. She has untreated Bi-Polar disorder and acting crazy. She has no car & lives with my grandson at her aunts house. My son has a house & my grandson has his own room over there. My son has a court date to file for full custody but it's not until the end of September. He's a good father and pays his child support and loves his son very much. I just don't know where to begin. Hiring a lawyer is too expensive. Plus, I fear she will take the grandson to GEORGIA PERMANENTLY!!

I need legal advise PLEASE!!

Thank you,

DistressedGrandma


ocean

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Re: non-married custody situation
« Reply #1 on: Jul 03, 2012, 03:50:51 PM »
Until he gets a court order with either custody or his parenting time in place, there is not too much you can do. When he filed for custody he could of asked for temporary visitation until the court date. At his first date, make that his priority, that he wants temporary orders in place while the court dates/trial continue.

Family court and trials take months and in some cases years to get a final order so be prepared. Have your son ask for time with his child, offer dates and times for her to choose from. Either email, text, or register mail the requests as proof you are trying. If she has a lawyer, have son call lawyer and ask for temp days to see son. Take anything that is offered. If child is involved in school, daycare, activities, have son be involved as possible (with proof, take pictures). Get dr records and if child starts Kindergarten be involved with his teacher.

If you fear she will leave or says she is, file emergency restraining order to take child out of state until court date. In his final orders he can ask for First Right of Refusal, basically when she needs a babysitter she has to ask him first before other family or babysitter. It will be hard to get full custody unless you can prove neglect so if they live close try for 50/50 placement if possible and doable with school. There are many parenting plans out there, look them all over and put one together that covers all situations as it is hard to change and will be the court order for the next 12 years. (birthdays, funerals, summer visits, school closed holiday, long holidays, fathers day).

Offer to babysit him if she needs to go out, offer to meet at public places where she can stay. Just get to see him as often as you can but she is in control right now...

OneMan

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Re: non-married custody situation
« Reply #2 on: Aug 30, 2012, 10:51:33 PM »
Is there no custody order?
In non-married situations, in many states, he has just as much custody rights as she does if he's named as the father on the birth certificate. This could even be the case if his name isn't on the certificate.

This means that he can keep his child as long as he wants...which is exactly what she is doing.

Check your state's laws.

BTW, if the mother is acting this way now, there is a high probability that she will always act this way. Assume that she will. If you are lucky, she won't. But prepare for the worst in this kind of situation.

Since she acts this way and demonstrates that she will make extraordinary efforts to keep the child away from his parent, the father would be smart to move for sole custody unless she is willing to agree to a 50-50 plan and abide by it.

If she doesn't agree, the father has a strong case for sole custody because he shows that he will act in the best interest of the child whereas the mother has shown that she will not.





Spaceman1982

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Re: non-married custody situation
« Reply #3 on: Aug 31, 2012, 12:02:35 PM »
Im sorry....but where is this a "good case for sole custody"??
If there arent any orders in place and shes not violating any visitation orders......the sad truth she is in her rights. Screwed up as she may be, thats what it is. And from the way grandma is posting, sounds like there may not be any orders in place.
If a married couple seperates and the dad takes kids somewhere and doesnt allow mom to see them he is within his rights. Thats why courts make orders is to outline a pattern for visitaion.
And yes, I know in most judges eyes the aboove scenario would be made a reason to give mom sole, but going off state laws, its not illegal.

OneMan

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Re: non-married custody situation
« Reply #4 on: Aug 31, 2012, 12:18:45 PM »
Im sorry....but where is this a "good case for sole custody"??


Again, "the father would be smart to move for sole custody unless she is willing to agree to a 50-50 plan and abide by it."

If the mother has a history of keeping the child away from his father, even going so far as to relocate the child, she is not acting in the child's best interest. Period. (I am presuming that the father is a fit father...no drugs, criminality, abuse, etc.)

Secondly, if the mother will not agree to 50-50 arrangement and the parents live close to each other, the question arises, why? If she is a mother who deliberately spirits the child away from the father, anything except a 50-50 split will probably end with the mother continuing with this behavior.

A sole custody ruling would be the best guarantee that the child would have an ongoing, regular relationship with his father, given THIS MOTHER'S BEHAVIOR.
 


OneMan

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Re: non-married custody situation
« Reply #5 on: Aug 31, 2012, 12:25:21 PM »

If there arent any orders in place and shes not violating any visitation orders......the sad truth she is in her rights. Screwed up as she may be, thats what it is.

True. She is within her "rights." But the father is also in his rights if he picks up child and keeps child away from mom, screwy as that it.

Who is the person seeking an order? The dad? Then the dad must show that while no order was in place, that is, when the mother was left to her own judgment, she refused to act in the child's best interest. Why would she be rewarded for this behavior by receiving a sole custody judgment? It would be unreasonable for a judge to rule that way because the has established a pattern that she would presumably repeat.

tigger

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Re: non-married custody situation
« Reply #6 on: Aug 31, 2012, 12:39:14 PM »
Check the laws in your state before going with any of this advice.  In my state, married parents have equal rights, however an unwed mother immediately has custody of the child as the paternity of the father may be in question.I would not suggest picking up the child and keeping him/her without consulting a lawyer family with your state laws.
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Spaceman1982

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Re: non-married custody situation
« Reply #7 on: Aug 31, 2012, 03:07:58 PM »
Check the laws in your state before going with any of this advice.  In my state, married parents have equal rights, however an unwed mother immediately has custody of the child as the paternity of the father may be in question.I would not suggest picking up the child and keeping him/her without consulting a lawyer family with your state laws.

absolutly 100% THIS!!
 
Oneman......I dont see where you think the argument stands is "she wont agree to 50/50, that means I should have sole custody"
Here, lets look at my states laws....which is tailored after so many other states
  NRS 125.490  Joint custody.
     1.  There is a presumption, affecting the burden of proof, that joint custody would be in the best interest of a minor child if the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage.
OK. presumption.....not guarenteed nor "you may force the other one into joint custody otherwise we will give you sole custody"
Here, I'll even give you personal first hand knowledge.
I handled my divorce ProSe. I wanted sole legal and Primary physical custody. she wanted one week on one week off. She insisted her cause was for best interest of children and the only reason I wanted her to have a EOW schedule was to keep kids out of her life. Kids were 6 and 4. I argued it was NOT in there best interests (and mind you mom lived just one school zone over) based upon a history of instability for children while we were married, the kids were in need of a stable lifestyle, and during the court proceedings I have been responsible for the oldest child getting to school where she was thriving!
So I never once agreed to her 50/50 arangement........oh, and I still was awarded Primary custody based on my argument.

OneMan

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Re: non-married custody situation
« Reply #8 on: Sep 01, 2012, 03:17:36 AM »
Check the laws in your state before going with any of this advice.  In my state, married parents have equal rights, however an unwed mother immediately has custody of the child as the paternity of the father may be in question.I would not suggest picking up the child and keeping him/her without consulting a lawyer family with your state laws.

I made the same point when I originally commented--check your state laws and check to see if the father is named as the father on the birth certificate.

Of course, if the father does not appear on the birth certificate, I cannot imagine any state presuming equal custody.

But if his name is on there, then, if there is no custody order or legal agreement, many states say that neither has custody.

My main point: do not ASSUME the mother is automatically the custodian without checking first.

OneMan

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Re: non-married custody situation
« Reply #9 on: Sep 01, 2012, 03:34:25 AM »

Oneman......I dont see where you think the argument stands is "she wont agree to 50/50, that means I should have sole custody"
Here, lets look at my states laws....which is tailored after so many other states
  NRS 125.490  Joint custody.
     1.  There is a presumption, affecting the burden of proof, that joint custody would be in the best interest of a minor child if the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage.
OK. presumption.....not guarenteed nor "you may force the other one into joint custody otherwise we will give you sole custody"
Here, I'll even give you personal first hand knowledge.
I handled my divorce ProSe. I wanted sole legal and Primary physical custody. she wanted one week on one week off. She insisted her cause was for best interest of children and the only reason I wanted her to have a EOW schedule was to keep kids out of her life. Kids were 6 and 4. I argued it was NOT in there best interests (and mind you mom lived just one school zone over) based upon a history of instability for children while we were married, the kids were in need of a stable lifestyle, and during the court proceedings I have been responsible for the oldest child getting to school where she was thriving!
So I never once agreed to her 50/50 arangement........oh, and I still was awarded Primary custody based on my argument.

My point isn't clear, I guess. In the original poster's situation, the father wants sole physical custody. I assume this is because he thinks the mother will continue keeping the child and father apart. However, I believe that even with a difficult mother (or father), it is still in the child's best interest to have a shared situation so that he has maximum time with each parent. Therefore, if she will agree to abide by a 50-50 agreement, that is best for the child. Only the father knows whether she is trustworthy. This particular situation doesn't look good, but I think people should be given a chance, especially when we're talking about a parent. But if the father is sure that she cannot be trusted, then a move for sole custody is the smartest move as I see it. And if she demands sole custody, then even more reason for the father to move for sole custody.

tigger

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Re: non-married custody situation
« Reply #10 on: Sep 01, 2012, 08:36:25 AM »
He doesn't indicate which state he's in but in NC:

"   Under state law, when a child is born to a married mother and father, that child is presumed to be a child of that marriage (North Carolina General Statute § 49‑12.1). This means that the father is automatically, in the eyes of the law, the legitimate father, and no further action is needed to establish paternity of the child.
      In contrast, when a child is born to an unmarried couple, a father’s rights regarding that child are not immediately established. This is true even if the father is listed on the child’s birth certificate. Paternity must first be established before a father can have any rights and obligations regarding visitation or support of his child.
      North Carolina statutes allow a child to be legitimized in one of two ways: through the subsequent marriage of the child’s mother and father (North Carolina General Statute § 49‑12), or through the declaration made by the child’s father to the court (North Carolina General Statute NCGS § 49‑10).
      Once paternity is established, an unmarried father has the same rights as a married father. This means a father has the right to visitation or custody of the child, as deemed appropriate by the court, and that the father has to fulfill support obligations owed to the child. If you are an unmarried father needing to establish your rights, contact your attorney for assistance through these court proceedings. "


Mother has immediate, continued and sole custody of the child. He has to establish paternity even if he's listed on the birth certificate and even then, he's not immediately granted the SAME rights as the married father, only that he's entitled as the court sees fit.
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OneMan

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Re: non-married custody situation
« Reply #11 on: Sep 02, 2012, 03:11:15 AM »
He doesn't indicate which state he's in but in NC:

"   Under state law, when a child is born to a married mother and father, that child is presumed to be a child of that marriage (North Carolina General Statute § 49‑12.1). This means that the father is automatically, in the eyes of the law, the legitimate father, and no further action is needed to establish paternity of the child.
      In contrast, when a child is born to an unmarried couple, a father’s rights regarding that child are not immediately established. This is true even if the father is listed on the child’s birth certificate. Paternity must first be established before a father can have any rights and obligations regarding visitation or support of his child.
      North Carolina statutes allow a child to be legitimized in one of two ways: through the subsequent marriage of the child’s mother and father (North Carolina General Statute § 49‑12), or through the declaration made by the child’s father to the court (North Carolina General Statute NCGS § 49‑10).
      Once paternity is established, an unmarried father has the same rights as a married father. This means a father has the right to visitation or custody of the child, as deemed appropriate by the court, and that the father has to fulfill support obligations owed to the child. If you are an unmarried father needing to establish your rights, contact your attorney for assistance through these court proceedings. "


Mother has immediate, continued and sole custody of the child. He has to establish paternity even if he's listed on the birth certificate and even then, he's not immediately granted the SAME rights as the married father, only that he's entitled as the court sees fit.

Again, check your laws. State laws vary. Many (most) states, for example, no longer call unmarried children "illegitimate," so no legitimizing as in the quote about NC above.

Also, many states do give father SAME rights as married father. For example, if a father has acknowledged that he is the father on the birth certificate, then his rights are automatically established. This is different from a mother writing some man's name on the certificate herself.

How can a mother have "immediate, continued and sole custody of the child" even in NC once the father's paternity is established there? If a legal judgment is made giving the father sole custody or half custody, then sole custody would not continue for the mother.

GA is the same as NC. According to one GA law blog:  If custody is to be an issue, father must still file legitimation first, and get the Order of Legitimation signed. Once child has been legitimated by the Court Order then father may file another action for custody. The exception to this rule is if the mother is deceased, there is no other legal parent or guardian, or the mother consents to custody. If father is already listed on the child's birth certificate as the father, but father and the child's mother were not married to one another, father must still file a petition with the court to legitimate his child.




ocean

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Re: non-married custody situation
« Reply #12 on: Sep 02, 2012, 07:12:59 AM »
Same in NY:
If father was never married to mother, he must prove paternity either by test through the courts or signing the paternity form in the hospital. After that, father has to file custody and visitation papers. Father will get joint legal custody here BUT will not get joint physical custody ordered unless the parents worked that out. It is very rare here for fathers to get more than the standard visitation. Sad but still true with the family court system.

OneMan

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Re: non-married custody situation
« Reply #13 on: Sep 02, 2012, 09:56:01 PM »
Same in NY:
If father was never married to mother, he must prove paternity either by test through the courts or signing the paternity form in the hospital. After that, father has to file custody and visitation papers. Father will get joint legal custody here BUT will not get joint physical custody ordered unless the parents worked that out. It is very rare here for fathers to get more than the standard visitation. Sad but still true with the family court system.

Yes, NY state is well-known for remaining in the dark ages when it come to fathers, married or unmarried.

When it comes to unmarried parents, the law has the unintended consequence of promoting a situation where a child is cut off from his or her father because the mother refused to marry the father after he got her pregnant. If she doesn't want the father in the child's life, the court will probably side with her, even though the father had asked her to marry him once she became pregnant or after the child was born.

Not a child-friendly law, to be sure.

In any case, these laws vary by state. According to one website:

"In states like Michigan, it is presumed that an unwed mother only has initial custody — as opposed to sole custody — even when the father is not on the birth certificate and has never signed a formal acknowledgment of parentage. 
"You should be aware, as well, that many states either make no presumption of custody based on whether the father is on the birth certificate, or presume joint custody even in cases where the parents were never married."
 


 

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