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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37890
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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the mother of my child and i have not set any legal agreement

Customer Question

the mother of my child and i have not set any legal agreement as to placement and custody. she left for california and was gone for 6 months, durring that time our son miles was under my care, she did not contribute anything at all durring that time. she came back two or three Weeks ago to stay at her moms, where miles was visiting for a week. i said he could stay longer with her since he was excited to his mom. when my son was ready for me to pick him up she said i could not, and she was going to enroll him in kindergarden in winona mn where her mom lives. i was able to pick him up this last friday, and said id bring him back sunday, because she wouldn't let me pick him up unless i said i would bring him back to winona mn sunday. my son is five, he starts kindergarden here in Wisconsin with me on sept 3rd and i have him enrolled in school as well as health care and food share. she wants to pick him up but miles wants to stay with me. we had a case opened in mn over a year ago, but closed it with hopes of coming up with a solution on our own. advice is needed as to what my rights as a father are in this situation.
Submitted: 1 year ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your question. Please permit me to assist you with your concerns.

Just to be clear, there is curently no order in place, temporary or permanent? You have ben informally transferring custody back and forth but nothing was ever formally reduced to writing, correct? And you are listed on the birth certificate as the father?
Customer: replied 1 year ago.
correct, there is nothing in writing. we have been voluntary transferring custody back and forth by our own free will. i am on the birth certificate, we were still together when he was born, i was there when he was born, and we were all together the first three years.
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

That actually helps you tremendously. The default custodial position for each parent listed on the birth certificate is that each parent share co-equal custody with the other. That means that either parent is free to make legal decisions on behalf of the child (such as daycare, kindergarten, or medical care), provide care and maintenance, but also deny access to the other parent. Since the rights of both parents are co-equal, neither can compel or force the other to give up the child or make decisions they do not agree with (until or unless there is a court order denoting otherwise). It also means that if you do not want to give the child back, she cannot force you. And it means that if if you enroll the child, she cannot somehow block that form taking place.

What she can do, however, is appear at the kindergarten and take the child back. While you personally can deny her access, any of your agents who do not have your rights would have to grant her rights to the child. The best way to fight it is to enroll the child as you see fit, then obtain an emergency order giving you sole custody, and providing a copy of that order to any locations where the child is left, such as kindergarten. Then the other parent would be unable to take the child back.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37890
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 11 other Legal Specialists are ready to help you
Customer: replied 1 year ago.
where do i make an emergency order, the court house or police station? its sunday, and monday is labor day
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up

You would need to go to court on Tuesday (as the courthouse is closed today and tomorrow), and file for an emergency 'ex parte' hearing claiming that the other parent may be seeking to abduct the child. An ex parte can be held with only one party present but because the other party is not there to challenge, the order would be temporary and you would need to return and file a full formal petition for custody as soon as you can. The temp order, if granted, would be granted until the full custodial hearing is held and the custodial split is formally decided.

Good luck.

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