No one has custody, what are my options?

[Jay]

I'm 26 years old. My child is 5 years old. Right now my child has been 3 weeks in Florida with me. He lives in New Jersey with his mom, granmother and aunt in a 2 bedroom apartment.  His mom is illegal in this country. Currently i have a permanent job with the aviation authority and I own a home with my wife. I' m planning to take my child back to his mom on Sunday. His mom had threatened me many times stating I wont see him again and many other things over the years. Every year is a mission to be able to see my son, and during the year she bearly lets me speak with him. His mom moves constantly and for me is really hard to track her down beacuse of her illegal status, I'm afraid she will dissapear my son when I least expected. Since he is here with me know in Florida, can I go to court and file for custody. What should i do. We were never married, we lived togheter for almost 2 years. I have his birth certificate wich shows me as the father.Any suggestions?

[BelleMere]

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[Jay]

I'm 26 years old. My child is 5 years old. Right now my child has been 3 weeks in Florida with me. He lives in New Jersey with his mom, granmother and aunt in a 2 bedroom apartment.  His mom is illegal in this country. Currently i have a permanent job with the aviation authority and I own a home with my wife. I' m planning to take my child back to his mom on Sunday. His mom had threatened me many times stating I wont see him again and many other things over the years. Every year is a mission to be able to see my son, and during the year she bearly lets me speak with him. His mom moves constantly and for me is really hard to track her down beacuse of her illegal status, I'm afraid she will dissapear my son when I least expected. Since he is here with me know in Florida, can I go to court and file for custody. What should i do. We were never married, we lived togheter for almost 2 years. I have his birth certificate wich shows me as the father.Any suggestions?

[BelleMere]

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[williaer]

Seriously- what's she going to do- show up at court and admit that she's in this counrty illegally. He is only a citizen because you are a citizen...it sounds awful but use her alien staus to your and your sons advantage..if she decided to flee, or she gets deported, you may never see him again.
What does your son think of that idea?

[Jay]

Yesterday I got the packet to file for temporary custody. Today, I went to the court and spoke with the legal advisor, they say that since his mom lives in New Jersey and he is been here for only one month, i will have to file in New Jersey not in Florida. I'm sad because if I go to New Jersey they are more protective there with the illegal people, and I'm not sure If I have a chance. Other lawyer told me that even though my son's  birth certificate has me as the father, I will still need a paternity test to have any rights of filing for custody. Does anybody know if this is true or what can I do. It upsets me that even though she is not here legally, it feels like she has more rights than I do as a citizen. I really don't want him to go back to that life and I feel like a bad parent if I don't do nothing about it, but also I don't want to get in trouble. Thanks in advance for any advice.

[Kent]

Don't return him.

Make sure you have excellent care for him while you cannot care for him yourself. If he's 5, he should be in Kindergarten now. Enroll him, and inform the school that you (and a designated person) is the only one who is allowed to pick him up from school.
Regardless if she's the mother, if she's not on the pick-up list, the school is not allowed to release him to her (and won't).

Do not allow her access unless the child is with you AND a third person, and do NOT let her take your son ANYWHERE, not even to the bathroom. (My son was kidnapped by his mother that way).

You DO need to file in NJ, and do it ASAP. Her illegal status is not that important, the BCIS has bigger fish to fry.
My ex was illegal for 3 years, and nobody cared.

Good luck.

Kent!

[Jay]

The BM sent me a text message stating that she went to court and the judge gave until next thursday for me to return the child, if not they will issue a warrant for my arrest. Can this be true. I have a missed call from a number that apparently is from a New Jersey court. I don't know what to do anymore.

[Kent]

You need to call the courthouse, and ask if she filed a petition.

If she filed a petition, it would be invalid since she did not have you served. (difficult to fight though)

If she didn't file, then you need to fight to get the warrant retracted. Since you are not hiding the whereabouts of the child to her, you cannot be charged with child abduction.

But you need to find out what the warrant would be for, and (if for child abduction) let the court know that they have no grounds (see above).

I.e. call the court house, hear what they have to say, and if a warrant might be issued, hire an attorney in the NJ county to deal with that immediately.

Good luck!

Kent!