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*URGENT*Can I Take Custody Of Newborn Son?

Started by pvtjokers, Dec 30, 2008, 10:48:44 AM

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I was having an affair for 4 months with a friend who I've known for 16yrs. that lives in Texas. I've known my wife for 17yrs. & we're still married along with living in Florida. My intentions during the 4 mo. affair were to divorce my wife (no children) then move to Tx. & pursue a relationship with the affair. The first 2 months were the best I've ever experienced within a relationship but immediately after the second month the affairs true colors immerged. Within the 1st 3 months of the affair the woman was served legal documents by her 1st Husband, petitioning custody of her oldest (12yrs. old) of the 2 existing children. The woman gave up custody of her 12 yr. old daughter in this case & was served a second set of legal documents by the second husband petitioning custody of her youngest daughter. The 2nd case was dismissed & primary custody is still awarded to the woman. Legal issues such as those mentioned would drive anyone insane. However, the womans' history of phsyical & verbal abuse are coming to light. I've experienced both physical & verbal abuse with no merit. I'm staying in the relationship until our child is born Feb. 25th.. The question is, Can I take our child to Florida after he's born without going to court? What would be the consequences for taking our child with a signed AOP & my name on the Birth Certificate? If I attempt legal custody I can assure you the woman would make visitation nonexistent with my child. Like I said, we'll be living 800 mi. apart once I move back to Florida. After seeing how she handles her current custody issues with the second husband I know our son will have little to no opportunity to know me. I would prefer not taking this to court since the woman has already been subjected to a legal rollercoaster & I'm not seeking a legal battle. However, if I'm limited on my actions I will simply pay the required child support once filed & request the standardized visitation. Thank in advance for any & all suggestions.


Since you are not married to this woman, then you have basically zero rights as the father.  When parents are not married, the mother automatically gets sole custody of the child (unless there is a court order stating differently).  If you take the child and leave you will be guilty of kidnapping and could be arrested and charged accordingly.

You have zero rights.  About the best thing you can do is after the child is born is to hire a lawyer.  A paternity test will be ordered.  After paternity has been established you will need to file for probably joint custody.  It is highly unlikely you will be awarded sole custody.  Also a child support order will be entered for you to pay her.  If you plan on moving 800 miles away from the child you will have 18 long years of fighting to have your visitation rights enforced.  If you really want a relatinoship with this child you need to stay where you are.-


Absent a court order for custody - if he's on the birth certificate - he legally has the same rights as Mama.

See a lawyer.  Now.


Heh! I was about to post the below statement when p1p3r replied. Thanks p1p3r for your reply. This is why I'm seeking advice from several sources & I have gotten just as many mixed answers from attorneys in the area. I'm one step shy of calling the court house & asking the judge! =/ 

Sherry1, I appreciate the quick response. However, if you read my post/question again you'll see I will be on the birth certificate along with having an AOP (acknowledgement of paternity) signed before leaving or even considering taking our child. I beg to differ about having "zero rights as the father".  I agree the notion of taking our child is unorthodox since it's not conforming to the normal judicial system but correct me if I'm wrong when I ask, isn't possession 9/10th's of the law in the majority of states? Am I correct in assuming, taking my child would NOT be "unlawful flight" since there isn't an order yet established for it to be considered "unlawful"? This is surely a loop hole in the system & I wouldn't think many if ANY attorney would recommend this action since 1. no legal fees for that attorney 2. no court fees 3. force the mother to gain custody 3. not a question within the bar exam (Joke). Again, I dont' think the paternity test is a question. If you read the ENTIRE post you'll see that's not in question & won't be once our child is born. My name will be on the Birth Cert. & WE will sign an AOP which is filed in Austin, Tx.. If you don't mind me asking, Are you an attorney? Thank again for your response & time.


No, she's not an attorney but she has MUCH experience with the family court system. 

If you were married, you would have equal rights to the child.  Since you aren't married (well, to the mother of the child anyway), you don't have rights, regardless of where your name is -- on the BC, on an AOP, chiseled in stone.  The law presumes maternal custody when a child is born out of wedlock. 

If you've gotten different responses from attorneys, what made you think you'd get consistent ones from the general public via a forum?  Looks like you're just looking for someone to agree with you.
The wonderful thing about tiggers is I'm the only one!


Quote from: pvtjokers on Dec 30, 2008, 10:48:44 AM
The question is, Can I take our child to Florida after he's born without going to court? What would be the consequences for taking our child with a signed AOP & my name on the Birth Certificate?
You do have rights as the father, but it's my opinion that doing what you're thinking of doing would hurt your case tremendously and cause you much more trouble in the long run. The courts view these kinds of actions (interstate moves, parental kidnapping, etc) as highly detrimental and would almost certainly hold them against you.
The trouble with reality is that there's no background music.


I understood correctly when you said you will be on the birth certificate.  However, if you are not married then you do not have equal rights to that child.  I am not saying I agree with this, I am just saying how I have seen it done (and no I am not an attorney).  If you take the baby and leave the state you will probably end up with a bad situation and you could be charged with kidnapping. 


I appreciate everyones input. Tigger, per your question & comment "If you've gotten different responses from attorneys, what made you think you'd get consistent ones from the general public via a forum? Looks like you're just looking for someone to agree with you." I've posted on several legal sites not limiting myself to the standardized "contact an attorney" response. It's apparent all responses will vary which is another reason limiting myself to "contacting an attorney" is naive. I'm not looking for someone to agree with my situation since there's always someone out there, regardless of right or wrong, who'll agree with what I propose. Gathering information to be knowledgable vs. "deer in the headlights" is my only objective which is why I'm venturing down the informative highway 3 months prior to the birth of our child. One tidbit of information I neglected to mention. The "x" (affair) changed her name legally (judge/court appearance) to my last name. Her reason to the judge for changing her name was "common law marraige". The name change took place in Tx.. Sherry1, I would've moved & stayed in Tx. if the relationship worked between the "x" & myself but if you knew what part of Tx. you wouldn't suggest I stay. Also the "x" can't stand the wife for no apparent reason. My wife is an officer in the armed forces & sweet as an Angel who's done nothing towards the "x". Referring back to my original post, the "x" is PSYCHO! Moving any closer would only make things chaotic! Thanks again for all your time & input.


I agree with Sherry, Tigger and Waylon.  If you try to do what you have planned, it will NOT go well for you!!  I know this for a FACT since my DS's father pulled exactly that stunt!  We were not married, our son was 10 months and X decided to take off with our son.  I went to the court, got emergency custody and X was told by the court to return our son within 48 hours.  He did not so a warrent went out for his arrest.  We went to court for final custody and the judge ripped him a new one for the stunt he pulled. 

If you want custody then perhaps what you need to be doing is to gather all the evidence you can to prove her unfit.  That wont be an easy feat that's for sure.  Unless she's a drug addict,  been to jail several times, and you have police reports for the abuse she inflicted on you.....there is very little chance of finding her unfit!!
Now I'm living....Just another day in Paradise!!

Kitty C.

Most of us are here because of 'psycho' exes!  The reason why your ex has a beef with your wife is because your wife is 'competition' to your ex.   Real or imagined, that's the way your ex sees it.

As far as any legalities are concerned, the only thing that matters is what the laws are in Texas.  If you do talk to any attys., it should be one who practices in Texas, primarily family law.

My son's father 'absconded' with our son from Iowa to CA (that's the way my atty. worded it) back in 1993.  Even with a flimsy joint custody agreement, once it made it to court, the judge was pi$$ed.  He got relegated to every summer and EO Xmas (long distance order) until 6 years ago.....when he passed away the summer of DS's 13th year.  At least DS got to tell him goodbye.

You have a fight on your hands..........and if the ex remains psycho, it wil be a fight for the next 18+ years, regardless of what the outcome of custody will be.  But you MUST let the courts make final determination.....without their 'seal of approval' on an order, nothing is legal regarding custody.
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......


Sherry, Tigger, Waylan, Giggles & Kitty, I thank you all for taking time to respond to my situation. Kitty & Giggles, your strories are exactly why I choose to gather information from the 'general public via a forum'. The replies are more consistent online than I've received through local attorneys. Whether or not all the information is accurate or not I'd rather be knowledgable. Taking our newborn is a quick resolve to this dismal situation but inevitably the courts disdane would reign havoc throughout my life (more than the psycho "x" could ever inflict). I truly appreciate everyone taking time to post & giving your own perspectives. HaPpY NeW YeAr!


The biggest thing with any custody situation is DOCUMENT DOCUMENT DOCUMENT.  Get a journal and write down every single thing that happens with your ex, make sure to include date time and any kind of documentable information.  Try to get the situation out of a he said/she said scenario and have documentation regarding her behavior. 

None of us are here to paint a bleak picture, we are here just to share our stories, knowledge and thoughts.  Waylon is an advocate of fathers rights, as well as I am.  You are doing the right thing by gaining as much knowledge about child custody laws as you can.

Good luck and have a great new year!

Kitty C.

Don't discount your 'local' attys. too fast.  They may be able to quote you custody law, chapter and verse, in Florida, but they probably haven't a clue about how it works in TX.  If it were me, I would be searching for a family law atty. in the same county that the ex lives in.  That is where any and all court proceedings will take place and only an atty. who practices in that jurisdiction will know what the 'atmosphere' (biases for and against) of the current court.  Mainly because they've actually been in front of those judges arguing cases themselves.

One other thing, I would act quickly in obtaining legal counsel.  The reason is, if the ex starts atty. shopping (and if this is a small jurisdiction, population-wise), she just might know better who might be a better family law atty.  Call the local courthouse and ask who practices in primarily family law....they may or may not tell you, but if they do, that's a huge plus.  Or contact the county or state bar assoc. for some names.  Always ask for one who specializes in family law.  Legal counsel is no different than healthcare these days..you don't want a family doctor doing your brain surgery, and you don't want a general council handling your family law case.  Make sense?
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......


Sherry & Kitty I appreciate all your advice. I fully understand seeking an attorney who specializes in custody issues. The X's family showed up @ both hearings on the behalf of the Biological Fathers. Point is, the X doesn't have the support of her family nor funds to pursue exceptional legal representation. However I'm not naive to suggest she couldn't find ways to obtain proper counsel. Not sure if I can document all the instances of her physical & mental abuse but I do have one witness of the aftermath. I'm carrying on as if everything is status quo till Feb. 25th (due date) since I didn't want her to experience a stressful pregnancy (I'm compassionate & care about our unborn child). The X is unaware she's going to be the X in 2 months. Are there any suggestions for breaking the news I'm leaving & going back to Fl. once our child has been delivered? Guess I'm looking for a tactful way to bring her up to speed.  I've made arrangments to purchase the property she resides so she'll not have to pay rent. All of her income is allocated towards bills & I'm currently paying the monthly rent. Waylan stated I had rights as a father but what rights do I possess w/o going to court!?! It reads like fathers have zero rights until child support is requested. Fathers then have the right to pay support & file for visitation since visitation isn't a guarantee nor FREE! If the X doesnt' allow/follow the visitation schedule then a father has the right to go back into the judicial system. The scale surely tilts towards the X regardless of their mental stability or the well being of a child. Back to the original question. What rights does any father have before going to court? I'm comparing this frustration to solving a Rubics Cube. Thanks again.


Since you were never married, you have no legal right to the child once it is born. Yes, getting your name on the birth certificate is very good and you will then have rights but in order to get those rights, you will have to go to court. It will be VERY difficult for you to get custody without solid proof.

You buying the house will not matter for child support and will be looked upon as a gift so be careful there. Most states are strickly by the numbers.

The best chance you would have is to stay near the mother and get joint physical custody (and that is very hard to get too in some areas...unless you both agree..).

If you tell her now you are leaving she may not put you on the birth certificate and leave you out of the loop of the delivery.

The posters that gave you advice have been here for YEARS. Most have been in court MANY times...fathers SHOULD have equal rights but family court is not set up for that. It will take you MONTHS in court to get a schedule in place and during that time she does not "legally" have to let you see the baby. It is very unfair but this is the reality. The best advice is wait until after the baby is born and see if you can come up with an agreement outside of court. If this is your first child, take a CPR and parenting class. If not, file as soon as child is born for parenting/custody plan..

What will you be asking for in court? Full custody and be allowed to leave with child to FL? From experience that will not happen without the mother agreeing. They are not going to let a newborn move away from mother, especially if she starts breastfeeding. If the courts just ruled that she able to take care of the other child then she already proved she is now fit enough to parent. Going to be a long, drawn out battle...courts postpone, start you out with a few hours a week with the newborn and see how it goes for a month or so...things like that..not pretty.

Good luck!


Quote from: ocean on Dec 31, 2008, 12:16:21 PM
Since you were never married, you have no legal right to the child once it is born.
This isn't necessarily true, and it varies from state to state. You DO have parental rights, but getting and enforcing them can (will) be an uphill battle. Most of what people here are telling is true; most of these folks have been going through this sort of thing for years, so I'd recommend listening carefully to what they say.

I'd suggest you read these before doing anything:





The trouble with reality is that there's no background music.


I am reading your posts and I am going to play devil's advocate here....

You are a married man, having an affair and impregnated that person. 
You now consider her not to be a stellar person and one who should not have custody, but you continue to have a relationship with her while you are married under the pretense of being together for the baby.  You have not told her you are leaving her to go back to your wife once the baby is born, and you were seeking guidance on essentially how to remove the baby from her custody without engaging the courts. 

Honestly, I am not judging you, but if you are going to go on an attack of Mom and her character, one could consider your character as well and this battle will get very ugly, very fast.   

The fact is, you are going to have an upward battle on your hands, no matter if Mom has support of her family or not.  You have received some very good advice from everyone, but this may not be as clear cut as you think your road to custody will be.  Inclusive of all of the reasons everyone has already said, the courts will consider the fact you are leaving for FL, you will not be able to gain custody and relocate the child, that is a separate  battle from gaining custody.  The courts are highly unlikely  to let you remove a baby from Mom and the courts jurisdiction.  If you move --it is you, not her creating any limitations to how often and how frequently you will see your child.  The courts will also consider in a custody battle which parent is likely to foster the relationship with the other parent.  Seeing as you were contemplating removing the child without Mom's awareness and you have already said you are leaving for FL, that will be a huge factor in the court's decision. 

   Newborns can't speak so you now have no telephonic communication. A newborn can't be put on a plane so you will have to travel back to Tx to see the baby.  You will HAVE to get along with Mom for communication and updates and seeing as that will not be very likely after you leave her for your wife, you have a long drawn out mess on your hands. 

You have some serious thinking to do before you pursue custody  in a court of law.  You will have a battle for 1) custody 2) relocation (if you get custody) and 3) does your wife know and support this decision?

Each state is different and you being on the birth certificate (if Mom even does this) does not give you automatic rights. You HAVE to petition the courts for your rights.

Kitty C.

Some very good points, MomofTwo............
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......


Mom of two had some excellent advice and points.  Thank you!


Momoftwo, thanks for your unbiased input. However, I'd like to clarify a few remarks mentioned concerning the affair. I'm by far not an adolescent discovering life & am aware of the saying "grass is always greener" but I truly was unaware of the affairs unstable behavior & NEVER once witnessed verbal outbursts towards her existing children or myself until AFTER she became pregnant. I'm not delusional to think any relationship continues to be "Stellar" but some form of rational & normal dimeanor is expected especially when children are involved. If I were here to tarnish the affair,"go on an attach of mom & her character" or thought is was relevant I would've mentioned the alcohol & pharmaceutical abuse which continues throughout the pregnancy. Before the pregnancy the affair was taking (2) OxyContin, (2+) Vicodin, (2+) Soma DAILY! She switched to (2+) Delotin & (2+) Vicodin (2+) Soma DAILY two months into pregnancy. She's taking (4+) Tylenol 4's DAILY w/ a Soma chaser here & there (private reserve) since the script physician won't prescribe OxyContin nor Delotin anylonger. Need I mention the physical altercations!?! I'm sure there are thousands of couples that don't tell the entire story, however, trust me when I say, telling the whole story won't do the affair one ounce of merit. I've had a life FILLED with "Male Bashing" & apologize if I'm not prone to Female Bashing. As Ocean posted, "If you tell her now you are leaving she may not put you on the birth certificate and leave you out of the loop of the delivery". If you're playing devils advocate, what's the lessor of two evils? Tell her I'm leaving now before the delivery, risk complications for the remainder of the pregnancy (suicide/drug overdose) & not being allowed to be present for the birth OR once the child is born tell her I'm leaving & let the courts decide when I'm able to see our child!?!  Per my character in question, I was separated from my wife for over 1yr. not counting the several years emotionally. My wife was FULLY aware of my visits to Tx. & the divorce path our relationship was headed. I personally feel my wife needed a wake up call which she finally acknowledged once she realized I filed for a divorce. As I mentioned in an earlier post, I'm not going back to my wife rather returning to my house in Fl.. I'm also aware of the physical limitations of an infant which I'll take into account while I make EVERY effort to spend time with our child. My parents divorced when I was 3 & didn't know or see my biological father till my 18th birthday. Not to mention I received custody of my now 18 yr. old daughter when she was 9 due to the abandonment of her biological mother. Point is, I've been around a block or two but never once needed/wanted to remove an newborn/infant from the mother with or without the courts assistance. If custody becomes an issue, I won't be seeking anything more than the mother is willing to offer since I know how spiteful the entire process can be. In retort to my intial post, I merely wanted to gain awareness of the feasibility taking our newborn son & possible insite how to handle breaking the news to the affair I'll be heading back to Fl.. If we can keep the stream of thought on those 2 topics I would be greatly appreciated. Thanks again for everyones input. It's been therapeutic & Welcome to 2009! =)

Kitty C.

Now this is a revelation...........

IMHO, your biggest concern right now shouldn't be about custody, but the baby's HEALTH.  If she's taking that many drugs (and you can just about bet her OB doesn't know....or she doesn't even have one), regardless of prescription or not, she could be doing serious damage to the fetus.  It could possibly be born addicted, brain damaged, or who knows what.  This is out right child (fetus) abuse.

What I'm about to write here may not make sense at first, so you may have to read it carefully a few times.  YOU are and have been aware of her drug abuse.  I'm not saying this is what will happen, but given the current justice system, anything is possible.  But if the authorities are made aware of the abuse going on by someone else (say the staff at the hospital at delivery?), either before or after birth, AND they also discover that you knew all along what she was taking and didn't say anything, it is possible (depending on jurisdiction and 'atmosphere' of the local system) that you BOTH could be charged with abuse.  The reason you could be included is because you knew what was going on and did nothing.  And I'm not even talking about trying to get her treatment, I'm talking about reporting it to the authorities.  Even if they do nothing with it (even initially), at least it is documented that you reported it.  It's called CYA...........

And I think you're getting hung up on the issue of wanting to return to FL.  The only way that will come up is during mediation and/or custody hearings.  Like I and others have said, there is no way you can take the child out of state unless you have the approval of the court.  If you're so concerned about telling her that you're leaving, let your custody petition do the talking for you, when you file that and parenting plan with the court.  But in order to do so, you will need to file for joint legal and physical custody.  If the court also determines that she is a threat to the baby (due to the in vitro drug abuse), you may have to request sole legal custody, so that her possible impaired state of mind won't be a factor in making major decisions in the child's life.

But you will also have to make provisions in any custody agreement in the possibility that she gets clean.  If she can shape up and be a parent, you must allow your child the opportunity to have a more extensive relationship with the mother, regardless of distance.  As it is, you might want to consider asking for supervised visitation until she proves to the court she is cleaning up her act.

I could go on and on here, but the bottom line is (IMHO) the issues of you returning to FL with the baby and trying to tell the ex should be farther down the list of priorities right now.  First, report the abuse for the sake of the unborn child's life.  Second, get an atty. in the ex's jurisdiction and get things set up so that as soon as the baby is born, you can petition for paternity (no, your name on the birth cert. does NOT prove this) and custody.  Third, be VERY much aware that the child may come into this world seriously impaired.  Given what you've stated, I wouldn't be surprised if it's born with severe respiratory distress, at the very least.  And if the child is impaired in any way (and depending on the severity), it may be in the hospital for quite some time initially and could possibly have long-term or life long effects.

Once the child is born, you file your petitions, and the ex is served, then she'll know that you want to take the child back to FL.  If she doesn't fight you in court about it and the court gives their approval, then you can leave with the child.  That's the LEGAL way to do it.  But your very first priority should be the health of that child, above all else.

BTW, the other posters weren't necessarily 'attacking' you because of your unwise pick of whom to have an affair with, I think it was the fact that you thought it was okay to do it in the first place.  Even if you were separated (not divorced), it's still not right (IMO) to be looking to another relationship when you haven't finished the last one legally.  It's very possible this could come out in court and, depending on how conservative the system is there, make it more difficult for you.  Be that as it may, what's done can't be undone, but forewarned is forearmed, I always say.
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......