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I am currently in a situation with two teenage children where

Customer Question
there was never any court...
I am currently in a situation with two teenage children where there was never any court ordered custody established. The children have been living with their dad for over 10 years and now they want to come live with me. Their father is in jail and the step-mother is not willing to hand the children over. I am trying to figure out my rights and the legallity of the situation, since there is no custody established.
Submitted: 9 years ago.Category: Family Law
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11/1/2008
Family Lawyer: hocuspocusme, USA Legal replied 9 years ago
hocuspocusme
hocuspocusme, USA Legal
Category: Family Law
Satisfied Customers: 466
Experience: If you are satisfied, please press the accept button so I will be paid for my time and services.
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The step mother has no legal rights to the children, however she is in physical possession of the children therefore you will have to file a petition to the courts for custody.

Since the father is in jail, I suggest you make an emergency exparte order to the courts for temporary custody. The judge will hear the petition without the father being present and set another permanent hearing for when the father is released from jail.

Chances are you will be given temporary custody in the interim. You must be able to provide a nurturing and stable environment for the children according to best interests of the children:

Best Interest of the Child

 

Title 19-A MRSA §1507 (4) provides the standard to be used by a guardian ad litem:

Best interest of the child. The guardian ad litem shall use the standard of the best interest of the child as set forth in section 1653, subsection 3. The guardian ad litem shall make the wishes of the child known to the court if the child has expressed them, regardless of the recommendation of the guardian ad litem.


Title 19-A MRSA §1653 (3) requires the Court to use that standard in making an award of parental rights and responsibilities, and sets forth the standards a court should use in applying that standard:

Best interest of the child. The court, in making an award of parental rights and responsibilities with respect to a child, shall apply the standard of the best interest of the child. In making decisions regarding the child's residence and parent-child contact, the court shall consider as primary the safety and well-being of the child. In applying this standard, the court shall consider the following factors:

  1. The age of the child;
  2. The relationship of the child with the child's parents and any other persons who may significantly affect the child's welfare;
  3. The preference of the child, if old enough to express a meaningful preference;
  4. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity;
  5. The stability of any proposed living arrangements for the child;
  6. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
  7. The child's adjustment to the child's present home, school and community;
  8. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
  9. The capacity of each parent to cooperate or to learn to cooperate in child care;
  10. Methods for assisting parental cooperation and resolving disputes and each parent's willingness to use those methods;
  11. The effect on the child if one parent has sole authority over the child's upbringing;
  12. The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects:
    1. The child emotionally; and
    2. The safety of the child;
  13. The existence of any history of child abuse by a parent;
  14. All other factors having a reasonable bearing on the physical and psychological well-being of the child;
  15. A parent's prior willful misuse of the protection from abuse process in chapter 101 in order to gain tactical advantage in a proceeding involving the determination of parental rights and responsibilities of a minor child. Such willful misuse may only be considered if established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular circumstances of the parents and child, that willful misuse tends to show that the acting parent will in the future have a lessened ability and willingness to cooperate and work with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of a child's best interest. The voluntary dismissal of a protection from abuse petition may not, taken alone, be treated as evidence of the willful misuse of the protection from abuse process;
  16. If the child is under one year of age, whether the child is being breast-fed; and
  17. The existence of a parent's conviction for a sex offense or a sexually violent offense as those terms are defined in Title 34-A, section 11203.



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Customer reply replied 9 years ago
Since I am living in Wisc and the children are back in Indiana, do I need to file with Indiana or with Wisc to be able to take the kids back to Wisc?
Family Lawyer: hocuspocusme, USA Legal replied 9 years ago
"Original Jurisdiction " is normally determined by the resident State that the children resided in at least (6) months prior to the filing for custody. With this said the State of jurisdiction would be Indiana where the kids are living. However, since he did take them away without your permission and you have been "relentlessly" seekig to find them and this is the first time that you have made contact with the children because you have not been able to find them, it is possible you could get an exparte order to return them to the State in which you live based on the fact that he is doing a jail sentence.

I advise you to call down to the courthouse on Monday morning and speak to the district attorney's office or the judge before you file the paperwork for the exparte order because you want to make sure they will take the jurisdiction in your State District Court.

It appears legally that it is in Indiana where the kids are at "prima facie" or first instance, but there are "extinuating circumstances" with your case. It is only in Indiana if the kids have been living there for a period of at least "six months". If lesser then the jurisdiction can be in your State of Indiana. Do call the courthouse and speak to the DA or Judge to make sure because of his constant moving.

When no custody was ever established "jurisdiction for filing" is normally based on the children's residence of six months, but like I stated it depends on other factors such as "home state jurisdiction". I am hoping that the kids were born where you are living then that would be in your favor.

Read this:

http://www.ncjrs.gov/html/ojjdp/jjbul2001_12_2/page5.html
This is a great article or jurisdiction.

BUT I CANNOT STRESS TO YOU TO SPEAK TO EITHER A LOCAL ATTORNEY OR BETTER YET CALL THE COURT HOUSE ON MONDAY TO FIND OUT IF THEY CAN DECLARE JURISDICTION FOR A TEMPORARY EXPARTE EMERGENCY ORDER. Stress to them that "no previous court order has ever been established". Judges have the power to assert jurisdiction in emergency order situations.
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