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Attorney & Mediator
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How as a mother can I regain custody of my 4 year old daughter

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My ex husband won the custody battle. He has residential custody and I have visitation. I was a stay at home mother for 2 1/2 years and then my husband threw me out of the marital residence. 18 when I got married 20 when thrown out. My husband held my child hostage by having another friend hold onto her while he pushed me out the door. I was unaware of my rights and didn't know I should have called the cops and filed a report. He then turned around and said I left her and him. This is untrue, not I'm fighting to get her back.
Submitted: 7 years ago.
Category: Legal
Expert:  Attorney & Mediator replied 7 years ago.
How long ago has it been since he threw you out?

Has he prevented you from having any contacts with your child?

Has he ever threaten you if you where to pursue your legal options?


Customer: replied 7 years ago.
Reply to Lawyer, Broker 's Post: The court has already determined that he gets residential custody. He threw me out I believe it was 2years ago. Last year the court determined he gets residential custody...we have joint custody. I just want to get her back because over the course of the year she has voiced that she wants to stay with me and not her father. He doesn't really threaten me because he already has her, but he trys to pull stupid antics to get sole custody. He's getting remarried in Septmeber and he wants to start his new family and basically push me away from my child. I'm concerned about her health because he smokes so she is chronically coughing and it seems that she always has sinus problems or a cold. This winter she has come to me with chapped hands and face because he doesn't put gloves or hats on her. He puts her in clothes that are not age appropriate and shoes that are to small when he drops her off to me. Sometimes without socks. She always has fingernails and toenails that are to long that haven't been cut since I last cut them. So long that a few times she has had cuts on her toes from the other toe nails rubbing. I just need some advice to know certain steps I should take to get her into my custody. I do get to see my child but ONLY what the court deemed as visitation. Wednesdays 5-8 and every other weekend from Fri @ 6pm to Sun @6pm. 1/2 of any christmas/spring vacations. Alternate holidays and two 3 week periods during the summer. He has threatened that if I don't let him see her during my time during the summer (which is supposed to be uninterrupted that he will take the visitation away.
Expert:  Attorney & Mediator replied 7 years ago.
Thank you for your reply.

Illinois has the following law on how custody is determined. Essentially you need to prove that it would be in the best interest of the child to change custody orders to you because the child has been affected someway from the current custodial parent's contact. Although I do not dispute his conduct in removing you from your daughter's life was horrible, if your daughter is presently living a life that is not putting her in any serious risk of harm, your petition for modification may be denied by the court. I am not saying that you should not request modification, but I am saying that your burden to provide the following what the law requires, without concrete evidence is tough.

Although I agree that no parent should smoke infront of his child, there is no law that prohibits this.

If the father has threaten to take away visitation rights that you are entitled to if he does not get his way, this will be a strong basis to present to court and argue that he is manipulating the system and is attempting to alienate your contact with your child. Courts do not favor such conduct by the custodial parent.

At this time, I would look over the law below and ask yourself if you can present evidence to request the change in custody.

Sec. 602. Best Interest of Child.
(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child's parent or parents as
to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the
child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
(4) the child's adjustment to his home, school and
community;
(5) the mental and physical health of all
individuals involved;
(6) the physical violence or threat of physical
violence by the child's potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing or repeated abuse as
defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and
(8) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship between the other parent and the child.
In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.
(Source: P.A. 94-377, eff. 7-29-05.)

(Text of Section from P.A. 94-643)
Sec. 602. Best Interest of Child.
(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child's parent or parents as
to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the
child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
(4) the child's adjustment to his home, school and
community;
(5) the mental and physical health of all
individuals involved;
(6) the physical violence or threat of physical
violence by the child's potential custodian, whether directed against the child or directed against another person;
(7) the occurrence of ongoing abuse as defined in
Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person;
(8) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship between the other parent and the child; and
(9) whether one of the parents is a sex offender.
In the case of a custody proceeding in which a stepparent has standing under Section 601, it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
(c) Unless the court finds the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody.
(Source: P.A. 94-643, eff. 1-1-06.)

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Attorney & Mediator, Lawyer
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Experience: Attorney & Certified Mediator
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