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LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 9334
Experience:  Experienced Family Law Attorney
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Me and my fiancee have been raising a little boy since he

Customer Question

Me and my fiancee have been raising a little boy since he was a year old and now is 3 he because his mother just gave up on him. He knows my fiancee and I as his mother and father , but now that she wants to move down to Texas with me his biological mother and her boyfriend don't want to give us custody when the little boy doesn't even know them or see them as his mother or father because they are never around. I want him to live with us but they don't want to give us custody but don't do anything for him.
JA: Have you talked to a lawyer yet?
Customer: No ma'am
JA: Anything else you think the lawyer should know?
Customer: I live in Texas and my fiancee and the little boy live in new york
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Family Lawyer about your situation and then connect you two.
Submitted: 11 months ago.
Category: Family Law
Expert:  LegalGems replied 11 months ago.

Is the fiance the biological father?

Customer: replied 11 months ago.
The little boys name is***** fiancee name is***** mother has a boyfriend who is not the biological father but marks mother listens to him when he says no to giving us custody
Customer: replied 11 months ago.
The only thing her boyfriend does for Mark is have him on his insurance. When there's been a couple of times mark needed to go to the doctor and we payed out of pocket for his visit. He keeps telling mark that she's leaving and it traumatized mark and he starts crying when he doesn't see my fiancee Jasmine
Customer: replied 11 months ago.
Even if shes just in the bathroom he cries if he doesn't see her saying he wants his mama, which he knows my fiancee as cause his biological mother doesn't take care of him at all
Customer: replied 11 months ago.
mark knows me as his father but he calls me "tata" it's a Hispanic name for father.
Expert:  LegalGems replied 11 months ago.

OK; so there is no biological father in the picture at all, correct?

Customer: replied 11 months ago.
If he sees a picture of my fiancee and I he will tell you we are his parents and I am in the military and hespecially hardly seen me.
Customer: replied 11 months ago.
No the father is not in the picture
Expert:  LegalGems replied 11 months ago.

OK; thanks; a few minutes please.

Expert:  LegalGems replied 11 months ago.

Thank you for your patience;

so under the UCCJEA (The federal Uniform Child Custody Jurisdiction Enforcement Act) the proper court with jurisdiction is the child's home state- where the child has resided for the last 6 months; if the child is moved out of that state, the NY court can issue an order that the child is to be returned so the matter can be litigated there.

Third party custody is only allowed in rare circumstances and I will include below the case law support for that, with examples:

Matter of Bennet v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821: before custody can be awarded to a non-parent, there must be a showing of extraordinary circumstances (such as that the children have resided with the third party and have thrived under that care)

Matter of Benjamin B. 234 A.D.2d 457, 651 N.Y.S.2d 571 (2d Dept 1996), a 4 year old boy's custody was awarded to the father's fiancé, because the court found that the father's substance abuse and the mother's "significant psychopathology" constituted "extraordinary circumstances."

The petition that would need to be filed is here

The court may appoint a guardian ad litem to represent the child's best interest-that is entirely up to the judge;

the court will try and preserve the status quo if the situation is such that it provides a safe, nurturing environment because a parent's ongoing absence is a grave concern to the courts.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 11 months ago.

Checking in on the above.

Thanks for using JA!