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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102584
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My wife and I are separated. We have a son and currently no

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My wife and I are separated. We have a son and currently no court order. He was in daycare one day and my wife withdrew him. He's now in the care of people I don't know really well, namely her sister. I know where he is and I would like to get him, however, my wife has instructed the people there to block me. If i called the police, can i force them to give me my son? Again there is no court order.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. You state that there is no court order - I understand. Would you be opposed to setting formal custody with the Court? Did you want to know how to do so? This would arguably be the fastest way to get the child back into your custody.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 4 years ago.

I would not be opposed to setting formal custody with the court and yes I would like to know how to do so.

Thank you. Apologies in advance for the momentary wait while I am typing out the answer...

Without a court order setting custody, either parent has a right to the child and may by that extent deny sharing the child with the other. The transfer of custody is supposed to be peaceful, but this almost never works. The parents normally end up filing in Court.

This is why this is not considered kidnapping - without court orders to state otherwise, he as a father has a right to the child just like you do, arguably. Ergo, the police are unlikely to intervene here unless custody orders are in place.

This is done by filing a petition for custody. See here for an example of such a pleading. An attorney is best, XXXXX XXXXX

The Court decides on custody based on the rule of thumb of "best interest of the child." This includes, but is not limited to the following factors:
(1) The wishes of the child’s parents regarding the child’s care; (2) the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (3) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest; (4) The child’s adjustment to the child’s home, school, and community; (5) The mental and physical health of all persons involved in the situation; (6) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights; (7) Whether either parent has failed to make all child support payments; (8) Whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; (9) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time ; and(10) Whether either parent has established a residence, or is planning to establish a residence, outside this state. (Ohio Code - Sections: 3105.21, 3109.03, 1309.04, and 1309.051)
.The courts generally do not like to split the custody 50/50 since this is hard on the child unless both parents agree and as for this. One parent usually becomes the custodian and the other parent becomes the "visiting" parent which is generally one day a week, every other weekend, and alternating holidays. The nuanced points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement.

Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation may be granted by the Court.

Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation.

The visiting parent pays child support to the custodian, unless the custodian declines it. All states have a preset salary percentage calculation for child support (see here), but this can be altered if both parties agree to a lesser or higher amount or do not put child support in the orders all-together; the Court will only impose default child support if the parties cannot agree.

While the petition is pending, which can take several months or more, one may file for TEMPORARY ORDERS setting custody/visitation, to get the child now. This will be revisited at final hearing.

Let me know if you need help finding counsel and/or leads for pro bono and low cost attorneys in the state.

Good luck.

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Customer: replied 4 years ago.

I'm a little worried here. My soon to be ex-wife is behaving poorly and has lied to me regarding where my son is and with whom. I haven't seen him in days and would very much like to see him. Ultimately, I probably will have to file for custody and I will most likely do it pro se.


I am sorry to hear that. Okay, I understand. What can I answer in your follow up?
Customer: replied 4 years ago.

What if I were to go to the residence where he is being kept and asked to see him? What if I just left with him, if and after i obtain access to him? Technically, I am his father and since there is no court order, I have a right to see him. Would this be construed as poor behavior? I won't call the police but what if they do? Who here is more in the wrong?

They can give you the child, or they can refuse. It is at her discretion. Just like if you had the child. Yes, you have a right to see him but she also has a right to deny you. It is a legal stalemate until court orders are in place. While this is unethical for her to deny, the Court would be more interested in who can be a better parent GOING FORWARD.

There is no one "in the wrong" here. You both have equal rights. It is a difficult situation. Hence, why most parents seek court orders.
Customer: replied 4 years ago.

Thank you for your timely response. I would very much appreciate leads to pro bono and low cost attorneys in the state, specifically Lake County, OH

I can recommend three resources. First, here is a list of all pro bono work in the state...

…and another list:

Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:
Customer: replied 4 years ago.

thank you again

No problem D; good luck.