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?