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Chris T., JD
Chris T., JD, Lawyer
Category: Family Law
Satisfied Customers: 4779
Experience:  I have assisted many customers and clients with their family law questions and I'm experienced in family law litigation.
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My wife has a 10 year old son with a man she never married.

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My wife has a 10 year old son with a man she never married. She has never had a custody agreement, but she has let his father have visitation every other week. He pays no child support and we are responsible for all medical/dental/vision. The last 2 years, the son has asked to live with us permanently as there are several issues in his dad's house (wife and two new siblings where he feels isolated, lots of fighting/yelling/cursing, some verbal/mental/physical abuse issues). My wife has resisted his request because she is afraid of his father (he has struck her twice and swung at her several times, verbally and mentally abused her multiple times, etc.) and his family is fairly wealthy and they have threatened repeatedly to "bury her" in court. Last Wednesday, an incident solidified this feeling in the child and when he told his dad he wanted to live with us tonight at a meeting with my wife and their son, his dad got really angry and threatened my wife and told her he expects to have him next Tuesday. Our son is scared of his biological father. Is there anything we can do between now and next Tuesday?

Chris T., JD :

Good evening. I'll be assisting you with your question.

Chris T., JD :

First off, I know how frustrating situations like this can be. Hopefully, I'll be able to help and point you in the best direction.

Chris T., JD :

To be perfectly honest, getting something done in basically 2 working days will be very difficult. You (or, more likely, your attorney) needs to file a motion for emergency custody modification.

Customer:

Neither party has an attorney at this point.

Chris T., JD :

The judge will see the motion and set is as soon as is practical. The judge will hear some evidence to make a determination as to what should happen to the child while litigation is pending, which is probably what you want at this point.

Customer:

Can one file for the motion without an attorney?

Customer:

There are many issues I didn't provide (i.e., drug issues, DUI, attempted suicides, etc. with the father). Would those have any impact on his getting custody?

Chris T., JD :

You can, but the procedure can be somewhat complicated, especially on such short notice. You really don't have time to learn as you go. One thing you can't do, however, is just refuse to send the child with the father and violate the court's previously ordered custody schedule.

Customer:

There is no custody agreement between the parents.

Customer:

She has given in to basically most of his demands because he threatens her all the time.

Chris T., JD :

Have they just been following their own every other week agreement?

Customer:

Yes. Until this past year, she was letting his father have him on an alternating 3/4 day schedule.

Chris T., JD :

In that case, she is under no legal obligation to turn him back over to the judge. Also, he has lots to lose by forcing her to go to court to get a custody order. Once they go to court, the judge MUST order child support. So, assuming she will end up with custody in the long term, by forcing her to go to court to get it, he will be ordered to pay child support, which will cost him thousands of dollars a year.

Customer:

He only provides limited support for the child, paying for half of his parochial school and half of activities

Chris T., JD :

Right, that is not really child support. His payments would likely be much, much more than that.

Customer:

Will he be responsible for any previous support?

Chris T., JD :

Yes, the judge can make child support retroactive.

Customer:

Will there be an issue because she has allowed custody/visitation in the past?

Chris T., JD :

In terms of child support or in terms of custody?

Customer:

I don't know if I would call it custody, but she has always allowed him visitation and a say in the child's well being. She has always wanted him in their son's life and still does, but his actions are forcing the issue.

Customer:

For custody issues.

Chris T., JD :

The judge can certainly consider the past and how things worked out. But, that can cut both ways. If he's lived with the dad for periods and it hasn't gone very well, that is a fairly good predictor of what things will be like in the future. But, just because she let him have custody in the past, that does not necessarily mean the judge will in the future. It all depends on the facts and how they play out in court.

Customer:

If we allow her son to go to his father's, can he refuse to give him back?

Chris T., JD :

Until you have a court order in place, he can.

Customer:

Also, speaking on what you just said...over the last two years he has called us almost every time he is with his dad wanting to come home. I'd say 75% of the time.

Chris T., JD :

Figuring out child custody without a court order in place requires the parents to get along extremely well. When things start to go bad, neither side has any real protection from the other side.

Chris T., JD :

Those are definitely things you should let the judge know.

Customer:

So would we be better served by not letting him go to his dad's house next Tuesday and filing for the emergency court order as soon as possible?

Chris T., JD :

It is hard for me to make that call without knowing all of your circumstances and how the relationship is. That said, it would clearly be the safest course of action if you have concerns about the child's mental/emotional well being and whether the father will give him back later.

Customer:

Is there anything else we should be aware of heading into this? Any pitfalls, etc.?

Chris T., JD :

There are several things you should keep in mind or try to do. First off, everything you do could end up in court, so be very careful about how you interact with the dad. Be as respectful and nice as you can, even if he isn't doing the same.

Chris T., JD :

If he comes to pick up the son and starts acting in a hostile way, pull out your cell phone and record him. That could be used as evidence later.

Chris T., JD :

Document as much as you can, and write down what you can remember.

Chris T., JD :

That will help you when it is time to go to court or see your attorney.

Chris T., JD :

Other than that, there aren't any other blanket rules I can give you.

Customer:

Thank you very much for your time and helping us better understand this sad situation.

Chris T., JD :

I'm glad I could help. I hope things work out for you.

Customer:

I appreciate it! Have a good night!

Chris T., JD :

If there isn't anything else I can do for you, please remember to "rate" my answer before you go. Good luck!

Chris T., JD :

Also, if you have any questions in the future, you can post them to the end of this question, which you can access through your profile.

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