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FamilyAnswer, Lawyer
Category: Family Law
Satisfied Customers: 27624
Experience:  10 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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My niece is having custody issues with her sons father. He

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My niece is having custody issues with her son's father. He does not want to return her son to her here in California. Her son has been with him for the last 6 months and going to school in Delaware. She has been more than fair in letting him visit and now he wants to take him to Japan where he will be re-located. He is not on the birth certificate and wants her to sign a waiver in order to get him a passport. He threatened her if she did not sign the forms he would have his present wife forge her signature. What options does my niece have. Her son had expressed that he did not want to go back with his father and he experienced separation issues being away from his mother.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. Has any custody or visitation been ordered by the court or is it all informal? Also, if she now has the child and he is with her in California, how is the dad going to physically get him, if she does not send him to the father?
Customer: replied 4 years ago.

My niece says that he intends to come out on the 24th of August to pick him up. She has not received any type of court order. It has all been informal. The father in the beginning had not wanted to be in his life and did not want his name to be on the birth certificate. His name is XXXXX XXXXX the Birth certificate. He has told my niece that when he comes out here to pick him up that she needs to give him up because he had been with him for 6 months already.

Thank you for the additional information. The 6 months he is referring to is the time in which the child would need to have lived with him, for the court to have jurisdiction over the matter, if he decided to proceed through the court, under the Uniform Child Custody Jurisdiction and Enforcement Act. The advantage which your niece has is that there has not been any type of court order imposed, giving custody/control to either the mother or the father. Moreover, the father voluntarily returned the child to the mother and he is no longer living in Delaware. Absent a court order, she does not have to turn the child over to him. He would need to proceed through the court and establish paternity, then have it ordered by the Judge, that he be awarded sole custody of the child and allowed to relocate out of the country with him. Your niece does not have to sign anything related to the passport if she does not want to and if he takes the child out of the country, he can face criminal charges for kidnapping and if his wife forges the signature, can face criminal prosecution as well. Right now, the father has NOTHING which says he has a legal right to the child or is even the father. If he shows up, she can call the police and have them remove him. He certainly can present a valid argument to the court as a result of the child living with him for 6 months and going to school, asking for the court to hear the matter but until that is done and an order is signed, he really has no ground to stand on.

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Customer: replied 4 years ago.

I'm sorry I forgot to include that the father is in the military service, Navy. My niece says that she gave temporary guardianship to the father's spouse over the phone. I guess he asked her to do that so the child could go to school in Delaware. I suppose there were other people present, maybe from the school when she did that. Is that even legal? Does my niece have to go thru the military's legal system? Apparently she was told she had to, it is all very confusing. Should she get a restraining order? Should she initiate proceedings for custody?

Any type of guardianship would need to be executed in writing. I find it hard to believe that it was given over the phone and accepted, as there is no way to verify that the person on the phone, was who they said they were. How did they know they were actually speaking with your niece and not someone who was a friend of the father or his wife. Also, who told her she had to go through the military legal system for child custody? As the mother of the child, there would be a presumption that she has full custody of the child. As I said before, absent a court order, the father can not just appear and take the child. If he were to appear and call the police, he has no proof what so ever that he is the father and is allowed to take the child. If she has concerns about violence or if he is making threats, she can try and obtain a restraining order to keep him away but it is not likely to happen, if he just wants to appear and take the child. Like I said before, she does not have to open her door, let him in or turn the child over.
Customer: replied 4 years ago.

My niece states that she has been given counsel from an attorney in California and he states that the jurisdiction should be in Delaware because her son has been living and going to school for the last 3 years in that state. My niece has just told me that she only had him on summer holidays and other holidays at that time. Does that change the jurisdiction challenge?

Based upon the additional facts then Delaware would have jurisdiction over the matter and that is where the father or mother would have to seek custody.
Customer: replied 4 years ago.

My niece wants to know how to go about finding an attorney in Delaware and if she could get one Pro Bono or low cost. Once she gets an attorney, how long could she get courts docs approved before the August 24th date to serve him.

The Delaware Bar Association has an attorney referral service set up that she can call, to speak with an attorney about the problems and possible obtain representation from. I have provided the link below. All attorneys are encourage to take cases pro bono, so there is not just a list of attorneys only only take cases for free. She can contact the attorney and explain her situation and see if she can retain them. Once she retains an attorney, the documents can be filed the same day and he can be served within a few days, once he is located.
Customer: replied 4 years ago.

My niece had her son with her for the first 4 years, then his father had him for the next 3 years not counting holiday and summer visits. What is her chance of getting full custody in this matter? What do you think? He is currently enrolled in school here and has siblings, a half-brother and half-sister here. Thank you for the help you have given.

If he has been living with the father for the past three years, the Judge may be inclined to grant it to the father, unless she were to relocated, at which point shared custody could be ordered. It is very hard to say and an odd case, as she allowed the child to be aware for her for all that time, without reason, having him for the first 4 years. The Judge is going to act in the best interest of the child and she will need to show for that to happen, he needs to be with her.
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