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Can the mother take the children out of state? Parental Kidnapping? EDIT: Social Worker - Page 2

post #21 of 38
From http://singleparents.about.com/od/le...ed_mothers.htm

"You should be aware, though, that many states either make no presumption of custody based on the birth certificate, or presume joint custody even in cases where the parents were never married."


From http://www.ehow.com/list_6523745_cus...d-parents.html
"In some states, the presumption is that an unmarried mother has sole custody of a child when no father is listed on the birth certificate. In other states, the mother is always presumed to have at least initial custody, regardless of whether the father is listed on the birth certificate. Still other states presume joint custody of the child by default, while a few states make no presumption of custody at all."

From http://www.dearesq.com/which-of-two-...imary-custody/
"In both a marriage, and the instance of an unmarried family where the father has been legally acknowledged as the father, either through DNA testing, a paternity action or, if your state’s laws provide, by being listed on the birth certificate, both parents are equally entitled to having the child with them"

It sounds like you can't make a presumption one way or the other, you need to look at what the laws are in your state.

Here's a link to custody laws in each of the 50 states:
http://singleparents.about.com/od/le...stody_laws.htm
post #22 of 38
It should also be noted that a court would NOT presume that the mother has physical custody in this case, at least after a filing, b/c the FATHER has de facto (factual) custody. This is b/c the children have always resided with him - the faster you get into court the better OP.
post #23 of 38
Quote:
Originally Posted by thyra View Post
It should also be noted that a court would NOT presume that the mother has physical custody in this case, at least after a filing, b/c the FATHER has de facto (factual) custody. This is b/c the children have always resided with him - the faster you get into court the better OP.
I agree with you, once it gets to court. In the meantime there is nothing they can do legally. There is no custody order, depending on the state by default it could be the mother or it could be either parent (assuming the father is on the BC). One of the parents should have been responsible, in this case the father since he has physical custody, and filed for custody with the court and avoided all of this. My post was directed specifically at that one comment.
post #24 of 38
Quote:
Originally Posted by thyra View Post
It should also be noted that a court would NOT presume that the mother has physical custody in this case, at least after a filing, b/c the FATHER has de facto (factual) custody. This is b/c the children have always resided with him - the faster you get into court the better OP.
Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
post #25 of 38
Quote:
Originally Posted by aricha View Post
From http://singleparents.about.com/od/le...ed_mothers.htm

"You should be aware, though, that many states either make no presumption of custody based on the birth certificate, or presume joint custody even in cases where the parents were never married."


From http://www.ehow.com/list_6523745_cus...d-parents.html
"In some states, the presumption is that an unmarried mother has sole custody of a child when no father is listed on the birth certificate. In other states, the mother is always presumed to have at least initial custody, regardless of whether the father is listed on the birth certificate. Still other states presume joint custody of the child by default, while a few states make no presumption of custody at all."

From http://www.dearesq.com/which-of-two-...imary-custody/
"In both a marriage, and the instance of an unmarried family where the father has been legally acknowledged as the father, either through DNA testing, a paternity action or, if your state’s laws provide, by being listed on the birth certificate, both parents are equally entitled to having the child with them"

It sounds like you can't make a presumption one way or the other, you need to look at what the laws are in your state.

Here's a link to custody laws in each of the 50 states:
http://singleparents.about.com/od/le...stody_laws.htm

Thats why I said in most states, not all. It gets very tricky when the parents aren't married and no one has bothered to get court ordered custody.
post #26 of 38
Quote:
Originally Posted by mtiger View Post
Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
Agreed. It has to be the parent of the child. The OP has no say in this case at all.
post #27 of 38
Thread Starter 
Quote:
Originally Posted by cycle View Post
I agree with you, once it gets to court. In the meantime there is nothing they can do legally. There is no custody order, depending on the state by default it could be the mother or it could be either parent (assuming the father is on the BC). One of the parents should have been responsible, in this case the father since he has physical custody, and filed for custody with the court and avoided all of this. My post was directed specifically at that one comment.
DH is on the BCs of both children. And DH has filed for custody, that is what started this. If he had never filed, she never would of taken them. She doesn't want it on paper that she has to have a set schedule to visit the kids.


Quote:
Originally Posted by mtiger View Post
Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
I know, and he is the one doing everything. But I am helping by doing research and asking advice of people who have been there/done that.
She is trying to keep me from the courtroom too
post #28 of 38
Quote:
Originally Posted by jstpmm View Post
DH is on the BCs of both children. And DH has filed for custody, that is what started this. If he had never filed, she never would of taken them. She doesn't want it on paper that she has to have a set schedule to visit the kids.




I know, and he is the one doing everything. But I am helping by doing research and asking advice of people who have been there/done that.
She is trying to keep me from the courtroom too
Is there a court date? Does your DH's attorney know that she took the kids? Sorry if you already mentioned it. If not, tomorrow first thing I would call the attorney and get an emergency hearing to get temporary custody back to their father until the court date. I am sure any judge would grant that given he has had custody. It is clearly not in the best interest of the children to be taken from their home so abruptly.
post #29 of 38
Thread Starter 
Quote:
Originally Posted by cycle View Post
Is there a court date? Does your DH's attorney know that she took the kids? Sorry if you already mentioned it. If not, tomorrow first thing I would call the attorney and get an emergency hearing to get temporary custody back to their father until the court date. I am sure any judge would grant that given he has had custody. It is clearly not in the best interest of the children to be taken from their home so abruptly.

We are talking to one tomorrow morning and we are going to file for that. Our initial court date is in October. It isn't in their best interest. All they have ever known is here. DSDs have only met her family once or twice before this.
post #30 of 38
Quote:
Originally Posted by mtiger View Post
Correction - the faster DAD gets into court, the better.

And I don't mean to ride the fact that it has to be Dad, but it does. OP cannot do anything, legally, as she is not a party to the case.
I'm sorry, I tend to think of married couples as a collective 'you' and did not mean to imply that the OP is the one that needs to be filing. I also noted earlier in the thread that the OP has no right to deny the mother anything since she is a legal stranger.

OP - I'm glad you'll be filing to get emergency temp custody. Did she remove the children AFTER your dh filed originally? If she did I would expect her to at least get a good lecture from the judge since thats really not ok, if not more than that.
post #31 of 38
Quote:
Originally Posted by jstpmm View Post

She is trying to keep me from the courtroom too
What is she going to accomplish by doing this? But, just so you know she may succeed. In NY at least no one but the parties and any witnesses called to testify are allowed in the actual courtroom (and witnesses of course are only allowed in during their individual testimony). I don't know what would happen if one party was married, but I really wouldn't worry about that. Being in the courtroom doesn't actually do much since you don't say anything (if your dh has a lawyer they do all the talking, and your dh would do all the talking if he doesn't have a lawyer.)
post #32 of 38
Thread Starter 
Quote:
Originally Posted by thyra View Post
I'm sorry, I tend to think of married couples as a collective 'you' and did not mean to imply that the OP is the one that needs to be filing. I also noted earlier in the thread that the OP has no right to deny the mother anything since she is a legal stranger.

OP - I'm glad you'll be filing to get emergency temp custody. Did she remove the children AFTER your dh filed originally? If she did I would expect her to at least get a good lecture from the judge since thats really not ok, if not more than that.
That's how I am posting as a 'we' but it is DH that is the one doing everything. We never want to deny the mother access to her kids, just that she be on a schedule. The last 2 years.. a few times she'll tell us with only a few days notice she is coming to see the kids, we better drop all our plans. She even kept the older one from her last day of school cause 'she's not in town to see them everyday'. It's just been up and down, sometimes every other weekend, sometimes only once a month. It's tough on the girls.
Yes, she did take them after she was served, we filed and received the court date.


Quote:
Originally Posted by thyra View Post
What is she going to accomplish by doing this? But, just so you know she may succeed. In NY at least no one but the parties and any witnesses called to testify are allowed in the actual courtroom (and witnesses of course are only allowed in during their individual testimony). I don't know what would happen if one party was married, but I really wouldn't worry about that. Being in the courtroom doesn't actually do much since you don't say anything (if your dh has a lawyer they do all the talking, and your dh would do all the talking if he doesn't have a lawyer.)
I don't know, it just made me sad to hear it.
post #33 of 38
Quote:
Originally Posted by jstpmm View Post
That's how I am posting as a 'we' but it is DH that is the one doing everything. We never want to deny the mother access to her kids, just that she be on a schedule. The last 2 years.. a few times she'll tell us with only a few days notice she is coming to see the kids, we better drop all our plans. She even kept the older one from her last day of school cause 'she's not in town to see them everyday'. It's just been up and down, sometimes every other weekend, sometimes only once a month. It's tough on the girls.
Yes, she did take them after she was served, we filed and received the court date.




I don't know, it just made me sad to hear it.
RE: the bolded, is there an order that the girls cannot be removed from the state? There was one for us when my ex filed first (but he also said that he was afraid I would take DS out of state and not return even though that fear was unfounded). If there is, then she is in contempt of court. If not, you need to ask for one at the emergency hearing that you ask for. (again, collective 'you' that I use to refer to a married couple. It's your dh filing.)

I know its sad that you might not be there to support your dh, but its just a bunch of drama that goes on in a court room IME. You can still go with your dh and wait outside the court room, which he would probably really appreciate. Then again, she might not succeed in keeping you out of the courtroom, and you might be able to sit in, you'll just have to wait and see (although if you plan on testifying if there is ever a trial you may want to sit outside since you are not a party to the action they may not let you testify if you've been sitting in on court appearances)
post #34 of 38
Thread Starter 
DH talked to DSDs and after their Mother told him that she is taking DSDs to see a social worker on claims of abuse by me. Mom has already been coaching DSDs on what to say about me, our home, pets ect.

Will a social worker see through that? Does anyone know what they ask of a child. (DSDs are 4 and 2) They are happy, healthy kids. I can't think a social worker will think there is any abuse, physical or mental.

I feel awful cause it's all personal against me, nothing against DH. She was perfectly ok with leaving DSDs with him when he was alone and she wanted to go out and party and have a life apart from them. But now that we are together and now married, things just keep getting worse and worse. If I wasn't here, he'd still have his DDs.

And her bringing them back this weekend depends on what the social worker says.

We talked to a lawyer today. There isn't much we can do at the moment since we had a verbal agreement (although DH never agreed, her lawyer said we had no choice) for her to take the girls until the weekend. And then depending on how things go at our ICMC (about 2 months away), that determines DH's next steps. Unless she doesn't return them this weekend, then we can file for temporary custody.
post #35 of 38
Quote:
Originally Posted by jstpmm View Post
DH talked to DSDs and after their Mother told him that she is taking DSDs to see a social worker on claims of abuse by me. Mom has already been coaching DSDs on what to say about me, our home, pets ect.

Will a social worker see through that? Does anyone know what they ask of a child. (DSDs are 4 and 2) They are happy, healthy kids. I can't think a social worker will think there is any abuse, physical or mental.

I feel awful cause it's all personal against me, nothing against DH. She was perfectly ok with leaving DSDs with him when he was alone and she wanted to go out and party and have a life apart from them. But now that we are together and now married, things just keep getting worse and worse. If I wasn't here, he'd still have his DDs.

And her bringing them back this weekend depends on what the social worker says.

We talked to a lawyer today. There isn't much we can do at the moment since we had a verbal agreement (although DH never agreed, her lawyer said we had no choice) for her to take the girls until the weekend. And then depending on how things go at our ICMC (about 2 months away), that determines DH's next steps. Unless she doesn't return them this weekend, then we can file for temporary custody.
Generally social workers can see through false allegations, this is what they are trained to do and most have seen it time and time again. I'm curious though, how do you know that the girls mom has been coaching them on what to say about you, your pets and your home?
post #36 of 38
Thread Starter 
Quote:
Originally Posted by cycle View Post
Generally social workers can see through false allegations, this is what they are trained to do and most have seen it time and time again. I'm curious though, how do you know that the girls mom has been coaching them on what to say about you, your pets and your home?
I guess we can't say with 100% certainty. But just by what she said to DH/how she said it.

Like example, DSDs were outside playing and got bit by bugs. Both DSDs knew that they were bug bites and even told other family members about it when talking about their day and that they were itchy and we put medicine on it so it wouldn't itch ect. Younger DSD has sensitive skin so she itched a lot and scabed them over. Now according to Mom, older DSD said our new little puppy bit younger DSD. A puppy bite is so different from a bug bite. The puppy doesn't have the strength to break skin yet. And the pets aren't in the main house unless we are around to watch them.
post #37 of 38
If they are going to CPS with this claim, you will hear from the social worker. If the social worker is decent, they won't delay the girls going home, they will (I think) come up with a "safety plan" so that the girls aren't in your care alone until the claim has been investigated. However, its unlikely that with a claim like a puppy bite/bug bite it will get very far. Although, I've been around my fair share of puppys, and while most of them didn't break the skin it wasn't due to lack of strength.

Any other claims of abuse?

ETA - when you hear from the social worker you should be able to give them the names and numbers of people who can vouch for you, and who can tell them how wonderful you are with the girls.

Good luck. PS - this is based on my experience having CPS called on me, and what happened (although much abreviated - the whole thing was a disaster and is a long long story, but it has a happy ending). My advice if the girls have already been interviewed before they contact you is to cooperate as best as you can, it makes their job alot easier and can get the whole thing cleared up much faster than if you don't cooperate.
post #38 of 38
Quote:
Originally Posted by jstpmm View Post
DH talked to DSDs and after their Mother told him that she is taking DSDs to see a social worker on claims of abuse by me. Mom has already been coaching DSDs on what to say about me, our home, pets ect.
Dad should be cautious what he says to the girls, as this could be construed as his coaching them, too.
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