Withholding child from other parent - no custody agreement

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Latest post 04-18-2011 3:26 PM by LynnM. 18 replies.
  • 04-18-2011 2:43 PM

    Withholding child from other parent - no custody agreement

    Brief scenario:  My 2 yr old grandson, his mother and my son (his parents) lived with my husband and myself since my grandson's birth.  My son recently completed an 8 month stay in a residential treatment facility which he admitted himself to voluntarily and returned home last week and immediately found employment.  During my son's stay there, the mother of my grandson met someone else and abruptly moved out of our home last month while my son was away and into the home of her boyfriend who is an alcoholic and cocaine user and who was a stranger to my grandson. She is now using as well and I have written proof of it.

    My son has been home 1 week and is having a hard time working out getting my grandson as she dictates everything.  He can see him for a few days but has to bring him back and is very unsettled by the atmosphere with which my grandson is having to live.

    We are thinking that maybe the next time he gets my grandson HE refuses to give him back to her since there is no written custody agreement and he files a petition for sole custody and demand a drug test for her.  He wants to eventually have shared legal custody but only if she is healthy and drug free and not living with the boyfriend of hers.

    In New York state when both parties are and never have been married, with no written custody agreement, and there being no doubt that he is the legal father (listed on birth certificate) can he refuse to give my grandson back to her out of safety concerns and then immediately file for sole custody? 

  • 04-18-2011 2:46 PM In reply to

    Re: Withholding child from other parent - no custody agreement

    Uh, no, unless you want a bunch of trouble.  The mother of a child is obvious; the child of a single father must prove his paternity via DNA in court. 

  • 04-18-2011 2:50 PM In reply to

    • Drew
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    Re: Withholding child from other parent - no custody agreement

    Absent a formal custody or visitation order and a formal court  recognized determination of he is "Dad" he is at a decided legal disadvantage in a power play ---he need to get some solid legal input.

    If Mom is a know  drug user and that is putting child directly in harms way--I'd also consider Dad contact  NY child protection services--but I'd only play that card AFTER consultation with  legal counsel --you want child to be placed by CPS witd "Dad" and not some 3d party  foster parent and if you ring an alarm bell too soon that might just happen



  • 04-18-2011 3:00 PM In reply to

    Re: Withholding child from other parent - no custody agreement

    In addition, it appears that son has had trouble with drugs; I'd not be making accusations of the other given his history...and one week of sobriety!

  • 04-18-2011 3:03 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    See now one other forum gave totally opposite answers.  They said with no legal written custody agreement, both mother and father who have never been married have equal legal right to keep child from the other until it hits a hearing date after petition for sole custody is filed.

    There is no question my son is his father.  His name is listed on my grandson's birth certificate, my grandson has his father's last name.  kathi21 are you a lawyer and know for a fact about what you said about DNA test having to be done first to prove paternity or is that an opinion?

  • 04-18-2011 3:05 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    It's simple logic; even the mother can't be sure if he's the father if she was with anyone else.

    I know of NO state that gives an unwed father rights; call a local lawyer beofre doing anything you will be sorry for.

  • 04-18-2011 3:07 PM In reply to

    Incredibly BAD idea!!

    If they had been married they would have equal rights to the child. because they were not, his rights are limited. He needs to go to court and get an order for visitation. He does not have the right to keep the child.

  • 04-18-2011 3:08 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    That should be; no rights until a court gives unwed father such rights.  Again, don't do aything foolish until consultation with a local lawyer.

  • 04-18-2011 3:08 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    My son has not had only 1 week of sobriety, he has had 8 months and completed his program with excellant recommendations and feedback from the time he was there.  Never into any trouble.  Don't knock his accomplishments when he is healthy and clean now.  What he went through, what he lost in those 8 months he can never get back, so he does not want this for his child's mother.  He believes his son deserves both parents who are clean, healthy & drug free.  He is but she is not nor is the boyfriend she is living with who is a stranger to my grandson.

    This is one of the reasons I hardly come back here because people make assumptions and comments without knowing details.

  • 04-18-2011 3:11 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    Given that Dad was also a drug user I would not bring that up at this point.

    DNA is not absolutely required - he can accept paternity without it. In fact it is almost certainly too late for him to challenge paternity.

    BUT - being on the birth certificate does not automaticlaly give an unmarried father custodial rights - particularly one fresh out of rehab.

  • 04-18-2011 3:11 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    Nothing about the law is "simple logic".  If that were the case we wouldn't need legal advice just based on what we feel is simple logic because it don't work that way.

  • 04-18-2011 3:12 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    No assumptions; but relapses do occur more often than not.  Hope the best for him, but no one can guarantee the future.  Just won't look good to make accusations when one is so newly reformed himself.  Good luck to all of them.

  • 04-18-2011 3:12 PM In reply to

    Re: Withholding child from other parent - no custody agreement

    If he was married to her, yes he would have equal rights. But he wasn't. Some state do give rights to unmarried men if paternity has been established, meaning the acknowledgement of paternity (AOP) completed and him being on the birth cert. AZ is one of those states that does give unmarried fathers some rights if the above is done. I do not know if NY is one of them but being your son is FRESH out of rehab with no long documented history of being sober and clean, BAD idea for him to keep the child. A DNA test is probably not necessary BUT that does not mean he has equal rights. He needs to talk to an attorney. After one week out of rehab I would say he absolutely should NOT keep this child. If he stirs up trouble you can bet the mother will file for full custody and use all this against him. He really needs to see an attorney and file for set visitation rights.

  • 04-18-2011 3:13 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    diananana:

    Nothing about the law is "simple logic".  If that were the case we wouldn't need legal advice just based on what we feel is simple logic because it don't work that way.

     

    It's not logical that no one can know who the father is without a dna test?  That's biology.

  • 04-18-2011 3:14 PM In reply to

    Re: Withholding child from other parent - no custody agreeme...

    Thank you Lynne for your advice.

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