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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41220
Experience:  I provide family and divorce law advice to my clients in my firm.
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Divorced since this past May. Seperated over ten years now.

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Divorced since this past May. Seperated over ten years now. Three children from this marriage. Father has two of the three children at his home now. He is telling the youngest (11) that he can not come see me or come back to live with me until we go to court. There is currently no custody order. Our oldest son (17) is there as well and he is allowing and providing him with alcohol and illegal drugs. States as long as he does it there he is being responsible. He would rather him do them there than somewhere else not knowing what he is getting???? The father currently has a very serious bi polar condition to the point she is on disability. Her own children can not stay the night with her ordered by the court. She has serious old charges two assault with a deadly weapon and has a serious drinking problem. Are these issues alone enough to grant a temporary custody order? If so, is this something that I could file myself?
Submitted: 6 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 6 years ago.
Thank you for your question.

I am a bit confused--you state that father has a bi polar condition and that "she" is on disabilility. You mean each of the family members is unfit--one provides drugs and the other has a violent past, is that correct?
Customer: replied 6 years ago.

I appolgoize. The father has a new girlfriend who has the severe bi polar disorder and is the reason she is on disability she also has serious violent charges on her record and also has a drinking problem. Her parents have custody of her children because of some reason and they are not allowed to stay over night with her per the custody order. The father allows and provides my eldest son (17) with alcohol and illegal drugs. I did contact the sherriffs dept and was told I needed to contact an attorney for temporary custody order. That if the incident was not in their presence there wasnt anything they could do. My son admits to this and so does his father.

Expert:  Dimitry K., Esq. replied 6 years ago.
Oh, now I understand. Thank you for your explanation--now it makes sense.

It does appear that you have legitimate grounds to file for custody. Before I answer completely, however, do the children ever come to you for a visit, or are they always with the other parent?
Customer: replied 6 years ago.

Honestly we have worked with one another for the past 7 years and the children would go with who they wanted. However since he has started dating this girl in May of this year I had a phone call from all three of my children while they were at the beach with their father and his new girlfriend stating they wanted to come home that she had locked two of them out of the house. I drove 8 hours straight because their father is no longer allowed to have contact with me. He changed his number and the kids and I have to call her phone. The police did assist me with getting the children that night in May. My oldest and youngest son wanted to see their father it has been a few months. They begged so I allowed this to happen. Since this incident our daughter will not have anything to do with her father and is still here with me. However, my sons were suppose to be picked up tomorrow. He will not allow my youngest son to return because I told him I would not allow him to do drugs and alcohol with our son. So now he is basically holding the kid. Does that make since?

Expert:  Dimitry K., Esq. replied 6 years ago.
Thank you for your follow-up.

It does make sense, and it is very sad, especially for the children.

You will have no choice but to file an emergency petition for temporary custody based on following grounds listed directly from the statute (I will bold the relevant section):

Temporary Custody; Secure and Nonsecure Custody; Custody Hearings.

? 7B-1900.? Taking a juvenile into temporary custody.

Temporary custody means the taking of physical custody and providing personal care and supervision until a court order for secure or nonsecure custody can be obtained. A juvenile may be taken into temporary custody without a court order under the following circumstances:

(1)?????? By a law enforcement officer if grounds exist for the arrest of an adult in identical circumstances under G.S. 15A-401(b).

(2)?????? By a law enforcement officer or a juvenile court counselor if there are reasonable grounds to believe that the juvenile is an undisciplined juvenile.

(3)?????? By a law enforcement officer, by a juvenile court counselor, by a member of the Black Mountain Center, Alcohol Rehabilitation Center, and Juvenile Evaluation Center Joint Security Force established pursuant to G.S. 122C-421, or by personnel of the Department if there are reasonable grounds to believe the juvenile is an absconder from any residential facility operated by the Department or from an approved detention facility. (1979, c. 815, s. 1; 1985, c. 408, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 1; 1994, Ex. Sess., c. 27, s. 2; 1995, c. 391, s. 1; 1997-443, s. 11A.118(a); 1998-202, s. 6; 2000-137, s. 3; 2001-490, s. 2.13.)

Monday morning contact your local courthouse, ask to speak to the clerk, explain the situation to her. State that you need to file for an emergency custody order based on the fact that the minor is unsupervised, the current parent is unfit and is possibly breaking the law, and it would be in the best interest of the child to be with you. Get the forms, fill them out, get the hearing with the judge ASAP, and once you get the order, contact the sheriffs, provide them with an order, and forcibly take your children back.

You can do this with an attorney, but you can also do this yourself.

Good luck.

Edited by Dimitry Alexander Kaplun on 8/1/2010 at 5:18 AM EST
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