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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 18811
Experience:  B.A.; M.B.A.; J.D.
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My son's children were taken out of their home by his woman

Customer Question

My son's children were taken out of their home by his woman friend (never married), and
was served papers asking for full custody. The papers were written incorrectly by her
attorney stating a resolution of a marriage. My son her attorney an stated that they were never married and so he said it was a "scribners error"?
Two questions please:
She is refusing to let him see the children (no court order), what rights does he have as far as custody?
Secondly, obviously the papers have to be redone regarding the marriage issue,
What steps should my son take to remedy this?
Thank you,
Elizabeth
Submitted: 2 years ago.
Category: Family Law
Expert:  Phillips Esq. replied 2 years ago.
Hello Elizabeth: This isCustomer I am a licensed Attorney and I will be assisting you today.
My son's children were taken out of their home by his woman friend (never married), and
was served papers asking for full custody. The papers were written incorrectly by her
attorney stating a resolution of a marriage. My son her attorney an stated that they were never married and so he said it was a "scribners error"?
Two questions please:
She is refusing to let him see the children (no court order), what rights does he have as far as custody?

Response 1 Until there is a Court Order for Custody, your son as an unwed father has no rights to see the children. The unwed mother has sole custody until there is Custody and Visitation Order. So, he needs to respond to the Petition and request for Joint Custody or in the alternative, reasonable visitation.
Secondly, obviously the papers have to be redone regarding the marriage issue,
What steps should my son take to remedy this?
Thank you,
Elizabeth
Response 2: He needs to file a response opposing the Mother's Petition for full custody and request for Joint Custody and reasonable visitation.
In a custody case, the Court would make a decision based on what is in the best interests of the children by looking at the living arrangement of the parties to the custody dispute, their lifestyles, associations, parenting skills, education opportunity for the children, etc. If the Court finds after reviewing these factors that the children would be better off with the parents having joint custody, the Court would deny the mother's request for full custody and grant the father's request for joint custody. Otherwise, the Court would rule in favor of the mother. So, it is very important that your son tell the Court any and all reasons why the mother's Petition for sole/full custody should be denied and why custody should be with both of the parents; any witnesses should be brought to the Court to testify. Remember that the Court can only make decision based on the evidence presented to the Court.
Customer: replied 2 years ago.
Thank you for getting back to me.
Your answers only told me what I already new .. perhaps because I did not frame the questions clear enough.
Let me try again ...
My son's name is ***** ***** his somewhat significant other is named Kira.
Michal and Kira have never been married and never made any marriage vows - and Michael has always said that he never planned to marry her or do so. The relationship has never been monogamist on Michael's part, both long before they began living together and thoughtout the years that followed. Kira has always been aware of that fact.
Kira was Michael's office assistant and personal confidant and they had a relationship that was more Brother and Sister like than anything else. Nevertheless, they both wanted to have children at some time in their life ... and so, notwithstanding that there was no promise of marriage in the future ,,, they nevertheless had two children Ava 5 years 10 months old [she was born in California, where they lived together at the time], and Luke 2 years and 9 months old [he was born here, in Palm Beach County].
Michael is shown on each of their Birth Certificates to be their Father.
For the past 6 years or so, they have lived together as a "Family Unit" in a five bedroom home that Michael has provided for them. Michael has also provided them with Private Schooling since they were both 2 years old, and has given them everything a parent would and should normally provide ... given the circumstances of the relationship between himself and Kira.Several days ago, without any notice or warning (kind of in the middle of the nigh), Kira removed herself from the home and took the children with her. Simultaneously, she had Michael served with a "Summons" and a "PETITION TO DETERMINE PATERNITY AND FOR RELATED RELIEF.
The papers also list Kira as the "Wife" and claim to be a Petition for the "Disillusion of Marriage". As such, among other relief, the papers seek "Legal Fees' from Michael for Kira's expenses in bringing the Action. Of course, she is also seeking child support, which, although Michael is currently unemployed, Michael would never deny her. Kira is also asking for sole and exclusive custody of the children with exclusive authority over their health and education decisions, based on an allegation that Michael is unfit to make such decisions - without offering any reasons for making such an allegation.So a better way to frame my questions would be this:1. is it necessary under Florida Law to bring and Action to establish Paternity, when Michael is listed as the children's Birth Certificates as their Father ??2. Can a person bring an Action for the "Dissolution of a Marriage" when there is, and never was. any marriage to dissolve ??3. While it appears that Florida Law provides for Legal Fees to be pain in Actions brought to "Dissolve a Marriage" is is proper to ask for legal fees under the circumstances described above ??4. Given the circumstance detailed above, what right does she have to demand "exclusive custody" and that if the Court should direct Visitation, that all such Visitation be "Supervised !!" ??5. Should Michael make a Motion to Dismiss based on the fact that the Papers are so defective - or would the one issue, child support, preserve the Action.6. Should Michael ask for Legal Fees , for having to defend the frivolous allegations in her papers, given that she, and her attorney, knows [or in the case of her attorney, should have known] that those issues are frivelous.Thank you in advane for four reply.
Expert:  Phillips Esq. replied 2 years ago.
Thank you for getting back to me.
Your answers only told me what I already new .. perhaps because I did not frame the questions clear enough.
Let me try again ...
My son's name is ***** ***** his somewhat significant other is named Kira.
Michal and Kira have never been married and never made any marriage vows - and Michael has always said that he never planned to marry her or do so. The relationship has never been monogamist on Michael's part, both long before they began living together and thoughtout the years that followed. Kira has always been aware of that fact.
Kira was Michael's office assistant and personal confidant and they had a relationship that was more Brother and Sister like than anything else. Nevertheless, they both wanted to have children at some time in their life ... and so, notwithstanding that there was no promise of marriage in the future ,,, they nevertheless had two children Ava 5 years 10 months old [she was born in California, where they lived together at the time], and Luke 2 years and 9 months old [he was born here, in Palm Beach County].
Michael is shown on each of their Birth Certificates to be their Father.
For the past 6 years or so, they have lived together as a "Family Unit" in a five bedroom home that Michael has provided for them. Michael has also provided them with Private Schooling since they were both 2 years old, and has given them everything a parent would and should normally provide ... given the circumstances of the relationship between himself and Kira.
Several days ago, without any notice or warning (kind of in the middle of the nigh), Kira removed herself from the home and took the children with her. Simultaneously, she had Michael served with a "Summons" and a "PETITION TO DETERMINE PATERNITY AND FOR RELATED RELIEF.
The papers also list Kira as the "Wife" and claim to be a Petition for the "Disillusion of Marriage". As such, among other relief, the papers seek "Legal Fees' from Michael for Kira's expenses in bringing the Action. Of course, she is also seeking child support, which, although Michael is currently unemployed, Michael would never deny her. Kira is also asking for sole and exclusive custody of the children with exclusive authority over their health and education decisions, based on an allegation that Michael is unfit to make such decisions - without offering any reasons for making such an allegation.
So a better way to frame my questions would be this:
1. is it necessary under Florida Law to bring and Action to establish Paternity, when Michael is listed as the children's Birth Certificates as their Father ??

Response 1: No, it is not. See Florida Statutes Chapter 742 Section 742.10:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0742/Sections/0742.10.html
2. Can a person bring an Action for the "Dissolution of a Marriage" when there is, and never was. any marriage to dissolve ??
Response 2: No. Also, the State of Florida does not recognize common law marriages. In addition, even in a State that recognizes common law marriages, both parties must conduct themselves and hold themselves out to the general public as husband and wife in order for the marriage to be recognized. That is not the case here. See Florida Statutes Chapter 741 Section 741.211.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0741/Sections/0741.211.html
3. While it appears that Florida Law provides for Legal Fees to be pain in Actions brought to "Dissolve a Marriage" is is proper to ask for legal fees under the circumstances described above ??
Response 3: No, it is not.
4. Given the circumstance detailed above, what right does she have to demand "exclusive custody" and that if the Court should direct Visitation, that all such Visitation be "Supervised !!" ??
Response 4: None. There is just no legal basis for her request.
5. Should Michael make a Motion to Dismiss based on the fact that the Papers are so defective - or would the one issue, child support, preserve the Action.
Response 5: While I cannot give legal advice because I am not your Attorney, the prudent thing to do in the circumstances like this would be to respond and oppose the Motion and ask that the Motion be dismissed in its entirety and list the reasons for the request to Dismiss.
6. Should Michael ask for Legal Fees , for having to defend the frivolous allegations in her papers, given that she, and her attorney, knows [or in the case of her attorney, should have known] that those issues are frivelous.
Response 6: Yes

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