Unwed father wants custody

[Franky]

My son lived with his girlfriend for a few years.  They have 2 kids.  She decided it was time to move on with another man.  Now my son wants to get custody of the kids.  His name is not on the birth certificates as the father, birth certificates lists father as unknown, but the kids do have his last name.  He has no idea how to go about getting custody of the kids.  She isn't a good mother, but doesn't abuse the kids.  She works nights and sleeps days so she don't spend much time with the kids.  Her house is party central for her friends.  She yells at the kids.  They cry for their father often.  

Can't afford a lawyer so I don't think he has much chance of getting them.  Any idea's?  Can he get custody of them?  He wants to do this fast.  She plans to take the kids and move out of state with her new boyfriend.  The kids are only 2 and 3 years old, both boys.  

[Ref]

First things first. You really need to assess whether he really can't afford a lawyer. I tell this to most people that start on this board, if you can find the money somewhere, credit cards, family loans, second morgage, selling you baseball cards... whereever, get an attorney.

My husband thought he couldn't (he didn't get creative enough) and wound up with his ex and daughter 1500 miles away and basically getting cut out of his daughter's life except for the Child support. Over the past 13 years he has spent $40,000 in visitation costs, thousands on long distance calls, $10,000 in legal bills and the worst penalty was being a visitor in his child's life. If you ask many on this board, that is getting off light.

If he really can't you can always do things Pro Se. I think your best chance at getting good advice is to post the state that they are in. Then people can site law for you.

He will first need to file for paternity. It varies from state to state, but google your state name and "family law forms" and you may get the docs you need. Also he will need to file an emergency restraining order (I think that is what it is called) to keep her from moving until paternity is established.

Is he seeing the kids at all now? If she is letting him see the kids, have him offer to watch them all the time. If they are in daycare, have him offer to pick them up. He should spend as much time as possible with them and have it be documented! That means taking pictures and keeping logs. He needs to establish that he is the primary caregiver.

As far as what you say is her not being a good mother goes, that will just be a personal opinion. I don't think a judge will give custody to your son over what you have posted. It takes a lot to change custody, like abuse, drug use, drug dealing and even then he needs evidence.

Like I said, post your state and even better, the county and you will probably get a bunch more help.

Good luck
Ref

[CustodyIQ]

He needs to file a paternity action ASAP, which will at least have a chance to slow-down or temporarily halt a move-away.

To file a paternity action ASAP and have any credibility with a court to put some restraints in place until permanent custody can be determined (i.e., as to what's best for the kids), he needs an attorney.

Find one who has at least 10 years' experience practicing family law in the kids' county of residence.  This experience will mean that the attorney knows the judge, likely knows opposing counsel, knows local custody evaluators.

Based upon what you've written, it doesn't seem like enough for him to get sole custody.

However, he may have a decent shot at getting joint custody.

This moment in time probably carries 80% weight in the future relationship that your son will have with his kids.

If he does nothing and she moves away, his battle gets many times more difficult.

If he starts the process immediately with a competent attorney, his odds are many times better at a good outcome.

Also, if she moves and his role is marginalized, he'll likely pay the maximum in child support.  If he has joint custody, he'll likely pay much less in child support.

Hiring an attorney could be viewed as long-term financial protection as well.

Loan him money to retain an attorney, or help him raise it.

[mistoffolees]

>Also, if she moves and his role is marginalized, he'll likely
>pay the maximum in child support.  If he has joint custody,
>he'll likely pay much less in child support.
>

I think you're confusing legal custody with physical custody.

Having joint legal custody won't do anything to reduce his child support. If he can get joint physical custody (which is probably going to be harder given the circumstances), it might.

[CustodyIQ]

>I think you're confusing legal custody with physical custody.

At this point, I think you're making inaccurate assumptions about my thoughts and knowledge.

Never did I state that joint legal custody has an impact on child support, so I'm not certain why you're harping on that.

The thread I wrote was about finding a way to preserve his relationship with the child, which implies custodial timeshare (and hence mentions of "custody" would obviously be in that context).

There are ways to clarify folks' posts without suggesting they're ignorant or misinformed on an issue.

[mistoffolees]

Except when someone says 'joint custody' as you did, they're almost always referring to LEGAL custody.

When referring to physical custody, the most commonly used term is 'shared physical custody'.

Your advice was misleading and I clarified it. Get off your high horse.

[CustodyIQ]

>Except when someone says 'joint custody' as you did, they're
>almost always referring to LEGAL custody.
>
>When referring to physical custody, the most commonly used
>term is 'shared physical custody'.


Since you're positioning yourself as an authority, please cite your source, else emphasize that it's your opinion.

It has been my experience that your statement is not quite true.

In California, for example, the term "shared physical custody" is not even in the family code (i.e., the very term you say is most commonly used in law).

Here's my source:  http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=5711686855+0+0+0&WAISaction=retrieve

[mistoffolees]

>>Except when someone says 'joint custody' as you did,
>they're
>>almost always referring to LEGAL custody.
>>
>>When referring to physical custody, the most commonly used
>>term is 'shared physical custody'.
>
>
>Since you're positioning yourself as an authority, please cite
>your source, else emphasize that it's your opinion.
>
>It has been my experience that your statement is not quite
>true.
>
>In California, for example, the term "shared physical custody"
>is not even in the family code (i.e., the very term you say is
>most commonly used in law).
>
>Here's my source:
>http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=5711686855+0+0+0&WAISaction=retrieve

If this was a court case, you might have a point.

Instead, we're posting to a board designed for and used by laymen. It doesn't take long in reading this board to see that 'shared custody' is most commonly used for 50:50 physical custody and 'joint custody' is most often used to describe 'joint legal custody'.

The fact that there's even a discussion indicates that the entire issue is confusing. In my opinion, one should never use the term 'custody' without EXPLICITLY stating whether you're referring to legal or physical custody if you want to be clear.

[Franky]

He wants physical custody.  He doesn't want to take her parental rights from her.  He wants the kids in his home where he can  properly feed, bathe, teach them proper manners, etc. and keep them from being exposed to drunken parties several nights a week and waking up with a new "daddy" every few days.  What kind of emotional damage does that do to preschool children?  Since they split up, she has become one wild party girl.  

He is a very mature 26 year old who has a steady job, although it doesn't pay real well, he does take his financial obligations very serious.  We are talking about a couple who make around $800 per MONTH so it's possible she could be long gone before he can get a lawyer involved.  This is a typical case of justice is for the wealthy.  Is there a way for poor people to get justice also?  I am retired & disabled, on a fixed income so I am worthless for any financial help.  That's why I am doing online research to discover information that may be of some help to him.  

At this point I firmly believe that if the kids remain with her, they will live in an unstable environment, bouncing from home to home, with very little chance of growing up to be responsible adults.  She sleeps all day and leaves them to their own resources.  If the father gets physical custody of them they will be in a stable environment, learn values, self discipline, and have a much better chance to grow up to be productive members of society.  

[mistoffolees]

You're going to have to be able to demonstrate the difference between your concerns about theoretical harm and being able to prove actual harm. My stbx is trying to take my daughter away based solely on her concerns that something bad might possibly happen some day (as opposed to my being able to prove that I'm an exceptional father). If the system works right, she won't get away with it.

Similarly, if all you have are vague concerns, you're not going to win. You need to be able to PROVE that harm has occurred or is imminent - particularly when trying to change the status quo. Can you prove that she's waking up with a different guy every few days with kids in the house? If you only have the kids' word on it, forget it - it's not going to fly unless they're pretty old (I would guess at least 10 or 12).

Perhapts it's unfair, but in the real world, you have to pay for what you want. If he wants his kids, he's going to have to come up with the money for a lawyer or else file pro se. I would certainly recommend the former - even if he has to borrow money - but if he does the latter, he's going to need to put in hundreds or thousands of hours learning the law before he has ANY chance of winning. My advice would be to use those hours to get a second job and pay for the lawyer.

He may have to look for a better job if the two of them TOGETHER are making $800 per month. That sounds like he's minimum wage - at best. Anyone who has drive and desire can do better than that.

This is far too important a matter to worry about money at this point.