Child Custody

[lezlee]

Hello All,

My family has a problem, my nephew has been in our custody most of his life he's five we normally have him monday through friday.  And his mom gets him on the weekend.  My brother did not pay her child support becuase he was in our custody.  Now she has filed for child support and now states that he needs to be with her.  And told my brother he can't see him anymore.  My family and I are extremely close to my nephew what can we do?   My brother wants to file for full custody because because we feel he's not in the best living situation.  Because his mom has remarried and had another child she has four and lives in a one bedrooom apt  where my nephew and his other brother sleeps in the living room.  She told him the only time he can see my nephew is when she has to work late and he has to pick him up from school.  What can we do?

[patton]

Does the father of the child live with you and the child at your home?

You say he's in your custody, but if his father's lives there also he's in his father's custody.  You are just providing a roof over their heads.

The father needs to file for custody if he can prove the child has lived with him most of his life and he has supported him, etc.

What did the court order state who had custody?  Who was supposed to be paying child support per the court order?

[lezlee]

Hello Patton,

Thanks for your reply,

In response to your first question the father my brother does live in the same household as my nephew.

Secondly my nephew has spent every Christmas, Thanksgiving and his birthday with our family, he has also filed him on his income taxes every year it's been since she has remarried it seems she has taken more of an intrest in my nephew.  

A court order was never filed for custody.  She applied for goverment assistance and they requested the father name.  And then the child support case was started.  They stated that he had to pay child support regardless if he was in our custody or not.  Since then she has made many attemps not to let us see him until it's convient for her.

I need to know what steps we can take to bring him home.

Thanks

Lezlee

[DecentDad]

Hi Lezlee,

Sorry to hear of that struggle you're facing, but especially sorry to hear that the little boy is right in the middle of it.

Here's my layperson's perspective...

This is one of those situations where if you don't handle it quickly and with all the technical legal ducks in a row, the father can really blow it, and there are no do-overs.

I'd suggest that y'all scrimp and scrape to come up with money to retain an attorney, because the following is what needs to happen:

1.  I assume that the child's parents were never married.  Technically, the father has no legal rights until it's established in a court that he's the father.  Child support orders may have done this (i.e., she may have done you a favor).

2.  You need to RUSH INTO COURT ASAP to prove dad has been the de facto custodial parent for five years, and that you and your husband have likewise helped in raising the child during those years.  Witnesses, photographs, and videotapes will show all this.  The reason why this is an ASAP step is because you don't want her to be able to establish that she actually is the primary home (generally six months is the key time period that establishes a certain arrangement as what the court will consider as the norm for the child).

3.  After establishing #1 and #2, you need to request orders to restore the stability and consistency for the child's best interest.  The mother will get custodial time as well (e.g., if you want to propose every weekend, just as before).  With court orders in place, it will be very clear what the schedule is, and anyone who deviates from that schedule will be in contempt of court.

4.  After #3 is in place, the father will ask that guideline child support be ordered.  If mom and dad make comparable money, whoever has the child for greater time will likely receive support.

It's my understanding that steps #1 and #2 could be pretty technical (in legal stuff), and judges must follow valid legal procedures.  If the merits of your argument are sound, but you didn't follow the right process, you lose.

There's a message board called "Ask Socrateaser".  He's an attorney.  Post your scenario briefly and just ask him what needs to be done to get the child back in your home.

Above all, you and your husband need to realize that the father needs to lead this charge.  You can certainly support him in it, but he needs to be the guy who stands up to say, "Yes, I'll be raising my son, and I have caring relatives who will also be around him."

Best,
DD

[tharper001]

Yes, paternity was established in 1993... Child was born in 1992.  We've already been denied a request for an emergency hearing.  We had requested this back in October due to four voice mail messages left for my SD after the mother had been served papers with our intentions.

They were very disturbing... threatening the child that she was going to throw her stuff out and make her room an office... that she was going to leave town and take the dog, and lying scum bag father and asshole was used numerous times and a few other choice words.  Yet, we had to return the child to this home... even after our attorney had requested an emergency hearing with emergency temporary custody based on the mother's state of mind in these messages... along with all the other documentation we have.  DENIED....

This is not the child's choice.  We have tried to keep the child out of the middle.  They just keep putting the child in the middle and making it seem as though it's the child's fault and that she better do this and she better do that.  

My husband's attorney is on retainer, and will remain on retainer forever if necessary.  I know I questioned when enough is enough... my children will need to go to college.  My children will not suffer because of this scenario.  My children will be raised much differently than my SD has been.  And hopefully the Good Lord will provide us with what we need to make that happen.  But I know my husband's attorney has suggested my husband calm down and think about this and continue to pursue nothing less than custody.  So I feel very confident in the attorney's abilities.

And yes, I have been more or less out of my SD's life for about two years now.  My husband is the driving force behind all of this because I can't take the pressure of knowing what my husband is going through.  We discuss it very little.  I don't ask many questions, and he tells me dates and such that may be important.  I don't go to any sports events or other things that my SD may be involved in -- although she hasn't been for the last year or so, so that doesn't matter.  I don't ask how she does in school... because I already know it's gonna be the same as it always has -- c's and d's... and I don't want to have to pass my opinion about those types of grades.

I don't discipline her, I don't ask her to do things around the house... my husband is completely in charge of his daughter.  That's the way he wanted it, and it's just easier that way.  I will do things like take her shopping and those kinds of things, but I'm better staying out of any of the parenting issues, etc.  I'll have my own children one day and will concentrate on raising my children.  

Thanks for the advice!

[patton]

Without a custody order it's hard to say.  Depends on what your States Family laws say.

Since the father has filed on his taxes every year, and the mother hasn't contested it, I would assume and the IRS also would that he had a supported the child more than 50% of the time.

Documentation is very important.

Even though the child lives in your home, the Father lives there also.  So the Father and child actualy LIVE with you.


Get an attorney ASAP!