Child custody, seperate states, no court orders to date

Submitted by dreamerlette on

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My ex and I have a 7 yr old boy together. We never married however his name is on the birth certificate by affidavit. We have had no court ordered custody and the child has spent his entire life with me in NC, his father left us to join the military before he was a year old. The father has paid a lower end amount of monthly child support, not through the courts, I once asked for it to be raised as the child is older and has more needs, he got angry and declined so I left it at that. I have done everything I can to be nice and make things work, allowing him to get the child most times he has asked as his job (military) has him living out of state and not around very often, however this has included giving him most holidays as the child is out of school to be able to travel to his fathers state. He didn't seem to want much to do with our child until he got married however, even stating himself that he had been taking our child forgranted. Everything has been ok for a while. However now the father is in the middle of a divorce but is still sharing a house with his separated wife, he is also dating another military members separated wife while they are in the process of their divorce as well. He wanted to take our son to his home for a month this summer, keep him in their house where I have been informed from numerous sources there is a lot of stress and fighting, and have his gf (also going through a tough divorce), who has never met our child watch him while he works. I told him I did not think this was a good idea and offered for him to come up with any other way for them to spend time together which he refused. Our son is highly intelligent and emotional and I fear that the situation would be too much for him, he picks up on the slightest things and it really upsets him. He has also told multiple family members that he does not feel he gets the attention he needs when he is there, before the divorce came up. I tried to explain to his father that I don't want to keep them from spending time together, they do need it, but I also cannot put my child into a situation that is potentially harmful for him, his health and safety is my top concern. Rather than trying to figure anything out his father has threatened me with lawyers, jag to be specific, stating that this will not happen again. What should I do from here to protect my son and the life he has always known and loved. Both sides of my sons family live in NC except for his father, stepbrother and half-brother. His father hardly ever even calls him, he only calls when he is planning a trip to NC and wants to get him, never just to talk to him or see how he is doing. I don't feel that I have been unreasonable in our situation, I also told him that our son really needs one on one time with him, something that he never gets, his only response was "I can't do that".

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DakotaLegal's picture

There is one very, very big

Submitted by DakotaLegal on

There is one very, very big risk: if there has been no formal court step (such as filing for custody), then the father has every legal right you have. Even though you have obviously been the primary “parent” to your son, you might even have to fight to get him back if the father decides to try and keep him. This is a very big risk, since you said the father is often in a different state, and you send your son there. It’s good you have worked to keep the dad involved, though, because one of the factors a judge considers is whether a parent encourages (they may use the word “fosters”) a positive relationship with the other parent.
 
Here’s a checklist under North Carolina law (N.C. Gen. Stat. § 50-13.2(a) of what goes into deciding custody http://www. ncga.state.nc.us/gascripts/ statutes/ statutestoc.pl?Chapter=0050). Here’s a “10 Point” checklist of how a judge evaluates placement: http://www.lawhelpnc.org/resource/factors-considered-by-the-court-in-a-custody. The first issue in temporary custody will be safety, and then (second) who is the primary caregiver? Be able to have witnesses and evidence (include school records and medical apportionments) to show you are that person.
 
One you have evidence showing you are the primary caregiver, begin thinking about what you think is a fair visitation schedule. Here’s a judge’s guideline for how they decide visitation: http://www.jud10.org/AdministrativeOrders/orders/Section5/Apps5-20.3/5-20-3.app4.pdf.
 
Legal Help
 
There are some places to go for immediate help. Depending on how much money you’re making, or what assets you have, you might get free legal aid or advice: http://www.nc freelegalhelp.org/ or try here  http://www.legalaidnc.org/. There are even possibilities of getting some help from domestic shelters, who have a lot of experience in advocating for children and in family emergencies…http://www.nccadv.org/service_providers.htm.
 
If anything does happen before you get a chance to talk with a lawyer, there’s away to get an emergency order. You can also file for an emergency hearing, especially if you have a concern about your son being taken away (or, worse of all, he is taken): you can go here, and write in the words “emergency” to find the family form you may need (whether worried about assault or the child being endangered, or taken away) http://www. nccourts.org/Forms/FormSearch.asp.
 
But once you file for custody, then your son will have more protection from simply being taken away. This will also force the father to deal with the court that is  most convenient to you. Look here, for information on how Family Court runs in NC: http://www. nccourts.org/Citizens/CPrograms/Family/.
 
One Other Caution… You know your son has made some comments about “I do not feel I get the attention I need when I’m there.” Court judges have a real worry and dislike about the possibility of kids being used by either parent to take sides. Since your son is only 7, the judge is unlikely to want to rely strictly on the boy's preference of home. Avoid encouraging these comments and don’t use them in court. It puts the child in too hard a place to choose between you. Instead, judges will look at other factors than a child’s comments to a parent, about which parent to live with: including having a home study evaluation.
 
To help keep the focus on your son, there are two steps, and both of them may help show the court you understand this focus. One, consider taking some parenting classes, including how to cope with any possible changes in custody. Two, you can study a little bit about what it remains to have your son’s “best interests” at the center of this process. The Supreme Court of North Carolina put it very simply, saying “the welfare of the child” is the most important thing, and that includes “happiness.” http://www.nc lawreview.org/ documents/ 90/ addend um/lapp&radice.pdf. Here’s some more information on proving that “best interest” is your goal: https:// www.childwelfare. gov/ systemwide /laws _policies/ statutes/ best_interest.cfm.

All Comments

DakotaLegal's picture

There is one very, very big

Submitted by DakotaLegal on

There is one very, very big risk: if there has been no formal court step (such as filing for custody), then the father has every legal right you have. Even though you have obviously been the primary “parent” to your son, you might even have to fight to get him back if the father decides to try and keep him. This is a very big risk, since you said the father is often in a different state, and you send your son there. It’s good you have worked to keep the dad involved, though, because one of the factors a judge considers is whether a parent encourages (they may use the word “fosters”) a positive relationship with the other parent.
 
Here’s a checklist under North Carolina law (N.C. Gen. Stat. § 50-13.2(a) of what goes into deciding custody http://www. ncga.state.nc.us/gascripts/ statutes/ statutestoc.pl?Chapter=0050). Here’s a “10 Point” checklist of how a judge evaluates placement: http://www.lawhelpnc.org/resource/factors-considered-by-the-court-in-a-custody. The first issue in temporary custody will be safety, and then (second) who is the primary caregiver? Be able to have witnesses and evidence (include school records and medical apportionments) to show you are that person.
 
One you have evidence showing you are the primary caregiver, begin thinking about what you think is a fair visitation schedule. Here’s a judge’s guideline for how they decide visitation: http://www.jud10.org/AdministrativeOrders/orders/Section5/Apps5-20.3/5-20-3.app4.pdf.
 
Legal Help
 
There are some places to go for immediate help. Depending on how much money you’re making, or what assets you have, you might get free legal aid or advice: http://www.nc freelegalhelp.org/ or try here  http://www.legalaidnc.org/. There are even possibilities of getting some help from domestic shelters, who have a lot of experience in advocating for children and in family emergencies…http://www.nccadv.org/service_providers.htm.
 
If anything does happen before you get a chance to talk with a lawyer, there’s away to get an emergency order. You can also file for an emergency hearing, especially if you have a concern about your son being taken away (or, worse of all, he is taken): you can go here, and write in the words “emergency” to find the family form you may need (whether worried about assault or the child being endangered, or taken away) http://www. nccourts.org/Forms/FormSearch.asp.
 
But once you file for custody, then your son will have more protection from simply being taken away. This will also force the father to deal with the court that is  most convenient to you. Look here, for information on how Family Court runs in NC: http://www. nccourts.org/Citizens/CPrograms/Family/.
 
One Other Caution… You know your son has made some comments about “I do not feel I get the attention I need when I’m there.” Court judges have a real worry and dislike about the possibility of kids being used by either parent to take sides. Since your son is only 7, the judge is unlikely to want to rely strictly on the boy's preference of home. Avoid encouraging these comments and don’t use them in court. It puts the child in too hard a place to choose between you. Instead, judges will look at other factors than a child’s comments to a parent, about which parent to live with: including having a home study evaluation.
 
To help keep the focus on your son, there are two steps, and both of them may help show the court you understand this focus. One, consider taking some parenting classes, including how to cope with any possible changes in custody. Two, you can study a little bit about what it remains to have your son’s “best interests” at the center of this process. The Supreme Court of North Carolina put it very simply, saying “the welfare of the child” is the most important thing, and that includes “happiness.” http://www.nc lawreview.org/ documents/ 90/ addend um/lapp&radice.pdf. Here’s some more information on proving that “best interest” is your goal: https:// www.childwelfare. gov/ systemwide /laws _policies/ statutes/ best_interest.cfm.