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LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 10484
Experience:  Experienced Family Law Attorney
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My daughter left her abusive partner yesterday. She left

Customer Question

My daughter left her abusive partner yesterday. She left with their son last night. He is out of town. She is in a safe place right now, but has no close friends or family in a Texas. She consulted with a domestic Abuse Hotline yesterday. She called a legal aid number this morning but was told to call back in a half an hour. He does not know that she has left. She has no support system in the state of Texas at all aside from this temporary safe place they are in right now. She has no transportation. I am in Colorado. I am leaving my home shortly to drive to Texas. My question is, if she tells him that she is coming to Colorado with me until they can get court dates figured out, etc., can she be accused of kidnapping? Typically, how long does it take to get a temporary order that would allow her to leave the state?
Submitted: 11 months ago.
Category: Family Law
Expert:  LegalGems replied 11 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  LegalGems replied 11 months ago.

I am sorry to hear this; are they currently married? If not, was paternity established? Also are there any pending child custody orders?

Customer: replied 11 months ago.
Not married. His name is ***** ***** birth certificate but as far as I know, no blood tests or anything were done. He is his. No child custody orders at all. This is the first time she left.
Customer: replied 11 months ago.
I am sorry, do I have to pay the additional amount to get a phone call to get a further response? Or are you responding and I am just being impatient? So sorry if that is the case. I am anxious.
Expert:  LegalGems replied 11 months ago.

No, please ignore that message; I am still reviewing this and am in the middle of a response; it will be just a few more mintues-thanks for your patience.

Expert:  LegalGems replied 11 months ago.

Thank you for your patience;

An unmarried biological father has no automatic rights when it comes to child custody and visitation (in Texas this is called conservatorship). Only the biological mother has automatic legal rights; rather the bio father would need to petition the court for an order of paternity to establish paternity, and then would need to file a Suit Affecting the Parent-Child Relationship in order to be awarded custody or visitation of that child.

IF an acknowledgment of paternity was signed by both, then this does give the father parental rights. Please note- a father's name on the birth certificate does not confer rights - please see here page 4, page 10.

So while an unmarried bio father has no legal rights to the child, if the mother leaves the state, under the UCCJEA (A federal law governing child custody) the child's home state, which is where the child last resided for the past 6 months, has exclusive and continuing jurisdiction to make orders re: that child. What this means is that if the bio father files a petition in court, the mother can be forced to return to the state to litigate that issue there. However, the UCCJEA does have an "emergency exception" so that if the mother leaves the state due to domestic violence, the new state may assume jurisdiction.

I am locating the UCCJEA statute but will post this so you can review this so far.

Expert:  LegalGems replied 11 months ago.

Information on emergency jurisdiction is here

It is common to simultaneously apply for restraining orders.

For information on this is CO

please see here

for Texas please see here

If paternity is established the court will determine custody/visitation based on the best interests of the child. Factors the court will consider, with the last factor being the "catchall" that allows the judge to consider whatever the judge deems relevant; of course domestic violence can have a serious impact on custody/visitation.

The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
The age and physical and mental condition of each parent;
The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life and the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
The role that each parent has played and will play in the future in the upbringing and care of the child;
The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
Any history of family abuse or sexual abuse and
Such other factors as the court deems necessary and proper to the determination.

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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.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.