Mother took our son our of state - neither of us have custody

[texas_dad]

Facts: Who's involved.  Me, the mother, our son.  States involved: Texas and Utah.  We are unmarried and have a 2 yr old son.  There are currently no court orders regarding any custody/visitation issues.  Paternity HAS been established since we both signed an Acknowledgement of Paternity form right after he was born, and my name is on the birth certificate.

We all have lived in TX since before my son was born, the mother and I had recently moved in together (were engaged) when suddenly she decided to move to Utah (she's Mormon) - leaving our son with me. She came back after 2 months for a visit for Mother's day weekend, since I felt it was important for my son to see his mother.  She stayed at her parents house and I let my son stay with them for the weekend.  She was supposed to leave on the monday after Mother's day and instead, left that Sunday night and took our child back with her without my knowledge.   I've since served her with a Suit Affecting the Parent-Child Relationship and awaiting her response/temporary hearing.  Based on the UCCJA Texas will almost definitely have jurisdiction over this case and I don't think she'll contest that, since from what I know she's retained a TX attorney.

A side note (if it matters):  She left without any arrangements for child care and with essentially the clothes on his back.  She quit her job once she got back out there and I'm not quite sure how she's supporting herself and providing for my son.  She's currently living in a 3 bedroom apt (with 2 other female roomates) with her own small bedroom, and all are sharing 1 bathroom, living area, and kitchen - obviously not the best environment for a 2 year old.  Here he had his own bedroom and all of his toys, clothes, family....he was enrolled in early preschool, etc.

He's got family (grandparents, aunts, uncles) here who he's attached to, and no connections in Utah other than the mom - and she just decided to move there b/c she wanted to find a mormon husband and have a mormon family.  I'm concerned that the longer he is out there with her (until the pending temp custody trial) the more likely a judge will allow her to keep him out there.  I know Dad's don't typically get a fair shake, but I love my son more than anything in this world and can't allow her to remove him from my life where I can't see him regularly, especially at such a critical age.  Just being able to see him on the main holidays and in the summer are simply unacceptable as far as I'm concerned.

QUESTIONS:

Do I have any options to force her to return him here? Can I legally go out there and get him back here until the temp hearing? If not, what are the chances a judge will not allow her to keep him out there/give her temp physical custody?  What advice can you offer for a good strategy to ensure his return to his home state?  It would be very much appreciated....

[socrateaser]

>QUESTIONS:
>
>Do I have any options to force her to return him here?

You need a temporary order from the court granting you sole custody. Without that, the common law principle is that where parents are unmarried, the mother has sole custody.

Your acknowledgement of paternity does not establish your legal rights. It merely states that you did not disaffirm paternity.

Only a court can declare your rights to custody of the child. And, if you haven't had a paternity test done, I'd do it, because you wouldn't be the first dad to believe a child was his, when it really wasn't.

>Can I legally go out there and get him back here until the temp
>hearing?

No. Unless you have a certified court order declaring you temporary sole custody, your attempt to recover the child would be kidnapping, because you have no lawful custody rights over the child.

>If not, what are the chances a judge will not allow
>her to keep him out there/give her temp physical custody?

Depends on how long you've waited to exercise your legal rights, and how long before the upcoming temporary custody hearing, and to what extent you can prove your having cared for the child in the mother's absence for the previous two months. The more time that passes, the weaker your case -- and without credible proof of your allegations, the court will be forced to give little weight to your claim of de facto custody, which would argue for allowing the mother temporary custody.

Your facts show that the child was enrolled in early preschool. If you have evidence of attendance that terminated with the mother's taking of the child, that would be proof that the child was in TX, but it still wouldn't prove that you were the only parent who was caring for the child.

You need some proof that the mother has been living in Utah during the same time that the child was attending preschool, like a copy of the apartment lease where she lives now, showing her signature and dated from two months ago. Or, proof from the post office thet she forwarded her mail to a Utah address during that same period.

That kind of proof would give you some good weight in court.


>What advice can you offer for a good strategy to ensure his
>return to his home state?  

Assuming you can prove the mother's absence, then I would try to expedite the hearing, because the more time that passes, the worse your case becomes. Courts are unwilling generally to change the status quo, and you've only been caring independently for the child during the past 2 months, so if it takes a month to get to the temporary hearing, the court will probably find that the child is better off in the mother's care, and that will pretty much be the end of your case, unless you immediately pack your bags and move to Utah.