Q about X taking DS from daycare (at my mom's)

[HappySunshine]

Hey all
I have been lurking on these forums a lot over the last few years but have not written much (got another username so my husband won't know it's me).
I have a very complicated situation... and am stressed to the max suddenly bc my husband emailed and said he will be in the country soon. I left him with my son because he is a very mean man. I'm in school ft and working pt. My mom is my amazing babysitter!!!
We are not divorced, so no custody papers. I am living in a complex for abused women.
Does anyone know if there is anything I can do to prevent him from picking up at my parents' home while I am working/ in school? I'm getting conflicting information. I know that since there are no custody papers, which ever parent has the child has custody. Some people tell me that daycare is considered still 'in my custody'... others tell me to quit my job and school and go to the shelter.
Has anyone had to deal with this? My husband is british and can get a passport for him without my signature. I don't want to freak out but I worry that he will take him to spite me... then try to use him as bait. or just be gone forever (he does not live in the UK... mostly developing countries)...This is turning into a bit of a novel but I really don't want to hide always. But also will not risk losing my little angel!! any advise appreciated.

[StephandOwen]

Well, I can tell you that at our daycare we would be legally obligated to let the child go with the biological father if he showed us something (birth certificate) that proved he was the father. The only way to keep a biological parent from taking their child out of our daycare is to have something on file with us signed by a judge saying that the parent doesn't have custody. I don't know how much that helps you out since it's your mom watching your child and not a true daycare.

Is there someone at the place you are living at that can help answer this question? It probably differs by location.

[One_Girl]

Daycare is not considered in your custody in the state I live in. I had to give copies of my divorce decree to the daycare and dd's school before they could legally stop him from taking her from there without my permission. Is your mom running a daycare or just babysitting him while you are away? Since it is your mom she may be willing to tell him no and not allow him to have access when you aren't there. If he doesn't have your mom's address or the address of someone else who is willing to watch him while you are away then I think you shouldn't give it to him. Can you go to the shelter for help getting a temporary custody order? They may have more resources and knowledge about this issue.

[SoulCakes]

I don't know much about the legalities of this, but maybe someone else can chime in and clarify what I'm trying to say. Couldn't you file for divorce and get temporary "status quo" custody? If you've had your son for a while by yourself, it seems like it would be granted fairly easily.

Again, not sure quite how that works, but good luck!

[Chantelle691]

I don't know either but I wouldn't want to wonder. I would get my child and keep him with me until I could get a judge to sign something giving me temporary (or permanent) sole custody.

Good luck.

[HappySunshine]

Thank you so much for your advise. My mom is only taking care of my ds, but he knows where she lives. It's extremely frustrating that even with the past abuse there is little I can do. My mom and I have discussed it and I hope we have come up with a good plan. Thank you again for telling me yore experiences- I didn't believe that he was still considered in my custody but had a few people tell me.... maybe they didn't understand that I do not have a court order.

[VocalMinority]

Originally Posted by HappySunshine

I know that since there are no custody papers, which ever parent has the child has custody.

So if he picks up the child while the child is not with you, then at that point he has custody of the child and you are left hoping he will be reasonable enough to return him/her.

Two people might have an intellectual argument about whether the child is "in your custody", while he/she is in childcare that you arranged...but what if your ex just walks into your mother's house, picks up the child and leaves, instead of engaging her in conversation about it? Since you don't have any court orders, who knows what - if anything - the police would do? He is the kid's father. Nothing says you have custody. In fact, nothing even clarifies you and the father don't live together. There's no court order saying he can't pick up his child from the sitter's, like any other parent is allowed to do.

I can't speak to the laws where you are, but here, for example either parent has the right to care for the child when the other parent is not available to do so - regardless who has custody and whose parenting time it is. So, let's say Mom has custody and Dad only has visitation EOW. If Mom has the kid in daycare Wed. afternoon, the Dad may legally pick up the child at daycare and keep him/her until Mom's ready to pick up the child. Now, obviously if Dad abused this and didn't return the kid to Mom or wouldn't tell her where she could pick up the kid after work, she could get a court order to make him stop. But the basic principle is sound - and increasingly common: Parents have priority over anyone else - even relatives - when it comes to spending time with the child. IOW, especially since you don't have custody, I would NOT assume that anything legally bars your ex from taking your child while he/she is with your mother, nor would I assume anything forces him to return the child, until you go to court and win custody. And if he's the one who files for divorce and has the child in his custody when he does so, that might complicate you getting custody.

I strongly recommend not leaving any of this to chance and going ahead and filing for divorce yourself. The court surely has some type of preliminary order that will clarify who has custody of the child, who's entitled to live in the marital residence, who's required to pay support to whom, etc., until the divorce is finalized. Hurry!

[Ceinwen]

Originally Posted by Jeannine

I can't speak to the laws where you are, but here, for example either parent has the right to care for the child when the other parent is not available to do so - regardless who has custody and whose parenting time it is. So, let's say Mom has custody and Dad only has visitation EOW. If Mom has the kid in daycare Wed. afternoon, the Dad may legally pick up the child at daycare and keep him/her until Mom's ready to pick up the child.

That's interesting. And frightening.

Where I am, the NCP could only do this if they have 'right of first refusal'. Having spent much time going through all of this with multiple lawyers, I can say (with certainty) that in Ontario - unless my ex has ROFR, he can not pick-up or otherwise demand time with our dc.

Without ROFR I can have the dc wherever I wish (daycare, school, home with a sitter, with my parents, etc) and he does not have the right to access at that time.

If he does have ROFR, I need to contact him to see if he would like the time with our children (our agreement specifies anything over four hours) These agreements can become sticky when issues such as summer camp or visiting grandparents, etc. become involved.

ROFR generally only works well when the parents are relatively close geographically and are on fairly good co-parenting terms.

I'm in Ontario fwiw.

[Momily]

Where I live (and work as a school administrator) we can only deny a parent access to their child if there is a restraining order, the child is in foster care, or there has been a termination of parental rights. Custody doesn't play into it. So, even if you have full physical and legal custody and no visitation, if the child's birth certificate names you (because we need a birth certificate to register a child at school) you can pick up your child.

[VocalMinority]

Further discussion of "Right of First Refusal"...

Originally Posted by Ceinwen

That's interesting. And frightening.

Where I am, the NCP could only do this if they have 'right of first refusal'. Having spent much time going through all of this with multiple lawyers, I can say (with certainty) that in Ontario - unless my ex has ROFR, he can not pick-up or otherwise demand time with our dc.

Without ROFR I can have the dc wherever I wish (daycare, school, home with a sitter, with my parents, etc) and he does not have the right to access at that time.

ROFR generally only works well when the parents are relatively close geographically and are on fairly good co-parenting terms.

I started a new thread with my response, because on reflection, I realize I'm getting fairly off-topic.

[happyfrogs]

I'm sorry it takes me so long to respond. i do not have internet at my home (yet!).
This is really scary to me. I have not been able to get a restraining order because he has no address to serve it to. An important detail but a very frustrating one. But this also means that if I do get sole custody unless I continue to get restraining orders for ever this will always be a problem.
Does it actually help if I file for divorce first? I haven't because he has been out of the country (no address) and I am so very broke. Can I file for divorce if I don't have an address to send him docs? I know this seems very naive but when it comes to these things i am completely lost.

[happyfrogs]

Thank you all for responding

[VocalMinority]

Originally Posted by happyfrogs

Does it actually help if I file for divorce first? I haven't because he has been out of the country (no address) and I am so very broke. Can I file for divorce if I don't have an address to send him docs? I know this seems very naive but when it comes to these things i am completely lost.

I am not a lawyer and I don't know where you live. Under your circumstances, I would be eager to file for divorce - and ask for temporary custodial orders - while the child is in my custody. Then you having custody will be the status quo. If your ex wanted custody, he would have to present arguments for deviating from the status quo.

Surely, he cannot avoid having his wife divorce him after he abandons her - and cannot avoid being orderd to pay child support - simply by concealing his address. Here, if an address is unknown, there are rules about running public notices in newspapers in the case's jurisdiction as well as any city where the Respondent might reasonably be assumed to live - and running those notices for a particular length of time. You will need to look up the rules where you live. It should be public information.

I would rather file for divorce without representation - and at least get some temporary orders in place - than to chance it that he files first and asks for custody.

[happyfrogs]

I didn't realize that it mattered who filed first. I am going to look into doing that right now while I have the internet. Thank you sooo much!

[Marsupialmom]

You need to get a court order......also be the first to get a passport for him if you cannot get the courts to prevent it.

If you have the pass ports in your possession then he can't use them.

Even though I am for ROFR, if you worry about him being a flight risk controlling the passport/s is the key.