• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Mother and Father want return custody from family member

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Status
Not open for further replies.

Byers033

Junior Member
What is the name of your state (only U.S. law)? Virginia

My wife and I are fighting for return custody of our 5 year old son. We had him when she was 16 and I was 18. We were unmarried and she was still in highschool, so we signed custody over, in court, to her aunt so he would have medical insurance, etc. and we have visitation on weekends in which we drive 2 hours round trip to pick him up and again to return him, every weekend except for 10 months, where we were out of state while I was in vocational school. It was discussed prior to signing, that this was to help us until we could make it on our own, although I now notice it doesn't mention that on the court order. Since signing off, we have gotten married, she has gotten her GED, I graduated from vocational school and started a successful business with very flexible scheduling and my wife has held a steady job for three years. We also have adequate housing with a 3 bedroom house that we've had for 1.5 years and will have leased to us for years to come.

The aunt refuses to sign custody over to us and will fight us to the end. It has gotten confusing for our son, because now the aunt and uncle now call themselved mommy and daddy too. I feel like it shouldn't be a tough for a judge as I don't see that his best well being is to spend the next 13 years with his biological parents only on weekends until he turns 18. We want to do this now before he starts kindergarden and gets attached to friends in the area. He has only attended headstart (pre-k) while up there.

My bigggest concern for factors against us, is that they have provided primary care of him for this long and I thank them for it, but it is time for him to be with his real parents and have no problem with them visiting from time to time.

Few other pertaining factors are that the aunt does have medical issues, such as requiring a feeding tube, as well as possible Leukemia and lupus but I have no supporting evidence of it.

This is all taking place in the state of Virginia.
 


mistoffolees

Senior Member
The advice is the same as the other thread.

Start by posting the exact wording of the custody order that the court signed. It is important to know if you granted guardianship or custody or even if your parental rights were terminated.

In the end, you're going to need a good local attorney.
 

Byers033

Junior Member
The order for custody/visitaion is as follows....


By agreement of the parties, custody of the above named child is placed with "the aunt" and "the uncle. "The Mother" is to have liberal visitatiation as agreed between the parties. The Father is to have: 1. Weekely visitation at the home of the custodian as agreed between the parties. 2. Every weekend from satruday at 3:30 PM to Sunday at 7:00 PM. 3. Holidays as agreed between the parties. Chilid is not to be removed from the hampton roads area without fathers consent.


....And the reason the mother had liberal visitation was she lived with her at the time after the son was born. She was only 16. After about a year she moved out due to no one was getting along, and the aunt refused to let her take our son. So we began getting our life together and now that we're ready, we find out that this is going to be difficult and could possibly not get our son back. Aren't we constitutionally founded to raise him as our own unless deemed unfit? Which we weren't, we just wanted him to have the best while we got on our feet.
The judge will see that she was only 16 right... we weren't abandoning him in any way. I think to be where were are at now in only 5 years is pretty good compared to where I see other people our age.

That and once again, no physical evidence, but I do know they were in open marriage. She had several boyfriends throughout this time. And our entire family is on our side on this. They have completely alienated themselves.
 
Last edited:

LdiJ

Senior Member
The order for custody/visitaion is as follows....


By agreement of the parties, custody of the above named child is placed with "the aunt" and "the uncle. "The Mother" is to have liberal visitatiation as agreed between the parties. The Father is to have: 1. Weekely visitation at the home of the custodian as agreed between the parties. 2. Every weekend from satruday at 3:30 PM to Sunday at 7:00 PM. 3. Holidays as agreed between the parties. Chilid is not to be removed from the hampton roads area without fathers consent.


....And the reason the mother had liberal visitation was she lived with her at the time after the son was born. She was only 16. After about a year she moved out due to no one was getting along, and the aunt refused to let her take our son. So we began getting our life together and now that we're ready, we find out that this is going to be difficult and could possibly not get our son back. Aren't we constitutionally founded to raise him as our own unless deemed unfit? Which we weren't, we just wanted him to have the best while we got on our feet.
The judge will see that she was only 16 right... we weren't abandoning him in any way. I think to be where were are at now in only 5 years is pretty good compared to where I see other people our age.

That and once again, no physical evidence, but I do know they were in open marriage. She had several boyfriends throughout this time. And our entire family is on our side on this. They have completely alienated themselves.
You really need an attorney and you need to take this to court. You certainly have a decent chance of getting your son back, but its not absolutely a slam dunk.
 

mistoffolees

Senior Member
Aren't we constitutionally founded to raise him as our own unless deemed unfit?
Yes, you have a Constitutional right to raise your own kids - but you gave that up when you signed over custody.

You really need an attorney and you need to take this to court. You certainly have a decent chance of getting your son back, but its not absolutely a slam dunk.
I agree that they have a decent chance, but it all comes down to one simple thing:

WHAT IS BEST FOR THE CHILD?

In order to win, they have to convince a judge that it's better for the child to be with them than with the aunt. That may involve a GAL, maybe some witnesses to what is going on at Aunt's house, and so on. OP is talking a lot about the parent's rights and that's a sure way to lose the battle, IMHO. Rather, they need to focus 100% on why it's better for the child to be removed from the only home he has known.
 

LdiJ

Senior Member
Yes, you have a Constitutional right to raise your own kids - but you gave that up when you signed over custody.



I agree that they have a decent chance, but it all comes down to one simple thing:

WHAT IS BEST FOR THE CHILD?


In order to win, they have to convince a judge that it's better for the child to be with them than with the aunt. That may involve a GAL, maybe some witnesses to what is going on at Aunt's house, and so on. OP is talking a lot about the parent's rights and that's a sure way to lose the battle, IMHO. Rather, they need to focus 100% on why it's better for the child to be removed from the only home he has known
.
I have to disagree with this. Parent's rights are an important factor in a case involving a third party. To NOT focus on that basically waives a parent's constitutional rights and does not preserve the right to appeal. A judge cannot base a third party case purely on best interests.

They also need a change in circumstance since the aunt has actual custody. However, it does appear that they have that change as it appears that the aunt is in failing health.
 

Byers033

Junior Member
The aunt's health is not the only change in circumstance. When we made the arrangment (which was originally agreed on to be temporary until we could support him on our own), the mother was 16 and I was just out of highschool.

Since then we have been married for 4 years, she has ger GED, we have steady jobs with fliexible schedules, a nice house, and our entire family's support. We are also fully willing to give the aunt and uncle liberal visitation including him sleeping over and taking him out to spend time with him.

How is being raised the rest of his child hood with his real parents not in his better interet compared to spending only the weekends with them. And once school starts and he has friends up there he is not going to want to come to a different town every weekend and miss having sleep overs and bday partys with his new friends. He needs to be in one house full time and 5 years old is early enough that it won't affect his mindset in the future.

My opinion may be biased but this situation isn't healthy. Especially with the aunt and uncle calling themselves mommy and daddy too.
 
Last edited:

Silverplum

Senior Member
What has changed for the CHILD?

Not you, not Mom, not anyone else, nobody else's changes in their lives. What has changed in the life of the child that "requires" a change of custody?

The aunt's health is not the only change in circumstance. When we made the arrangment (which was originally agreed on to be temporary until we could support him on our own), the mother was 16 and I was just out of highschool.

Since then we have been married for 4 years, she has ger GED, we have steady jobs with fliexible schedules, a nice house, and our entire family's support. We are also fully willing to give the aunt and uncle liberal visitation including sleeping over and taking him out to spend time with him.

How is being raised the rest of his child hood with his real parents not in his better interet compared to spending only the weekends with them. And once school starts and he has friends up there he is not going to want to come to a different town every weekend and miss having sleep overs and bday partys with his new friends. He needs to be in one house full time and 5 years old is early enough that it won't affect his mindset in the future.

My opinion may be biased but this situation isn't healthy. Especially with the aunt and uncle calling themselves mommy and daddy too.
 

CSO286

Senior Member
The aunt's health is not the only change in circumstance. When we made the arrangment (which was originally agreed on to be temporary until we could support him on our own), the mother was 16 and I was just out of highschool.

Since then we have been married for 4 years, she has ger GED, we have steady jobs with fliexible schedules, a nice house, and our entire family's support. We are also fully willing to give the aunt and uncle liberal visitation including him sleeping over and taking him out to spend time with him.

How is being raised the rest of his child hood with his real parents not in his better interet compared to spending only the weekends with them. And once school starts and he has friends up there he is not going to want to come to a different town every weekend and miss having sleep overs and bday partys with his new friends. He needs to be in one house full time and 5 years old is early enough that it won't affect his mindset in the future.

My opinion may be biased but this situation isn't healthy. Especially with the aunt and uncle calling themselves mommy and daddy too.
We aren't saying that.

We are saying that you will need an attorney to help you assert your rights.
 

Byers033

Junior Member
I am not trying to be argumentative or state things that are irrelevant, just very passionate about the situation for obvious reasons.

But the changes in his life are that he is getting to an age now that he needs to be able be in one house hold, let alone one city. There will be school events, events with friends, etc. that he will be hindered if he has to keep hopping cities on the weekends. Its traumatic for kids with divorced parents to do, why make him do it if it is an option to not have to.

Not to mention I find it difficult to believe that the DRAMATIC improvments we have been working so hard for, are not a large factor in the consideration of giving us custody back. Especially when, witnessed by our entire family, this was agreed to be temporary.

We were offered assistance and we took it, held up our end, and now he is being denied the oppurtunity to be with his parents full time. Every weekend I pick him up he comes running out the door and every sunday when I take him back, hes practically kicking and screaming trying to get him out of the car.
 
Last edited:

Byers033

Junior Member
I will be submitting the request for revision at the courthouse this week. I had a consultation this morning and was told most likely the first hearing will be an attempt at mediation and then if unresolved will go to trial.

Do I need an attorney for the mediation or will that be family only?
 

mistoffolees

Senior Member
I have to disagree with this. Parent's rights are an important factor in a case involving a third party. To NOT focus on that basically waives a parent's constitutional rights and does not preserve the right to appeal. A judge cannot base a third party case purely on best interests.
It has nothing to do with Constitutional rights. The parents voluntarily gave up those rights when they gave up custody to Aunt. The status quo is that the children have a legal custodian - their aunt. The parents have only 'reasonable' visitation. There's a presumption that they have to overcome.

They also need a change in circumstance since the aunt has actual custody. However, it does appear that they have that change as it appears that the aunt is in failing health.
Sorry, but failing health (even if it's true - and we only have a third hand story about that) isn't grounds for change in custody. Only if the Aunt's health is so poor that she can't take care of the child would that be relevant - and there's no evidence of that.
 

CSO286

Senior Member
I will be submitting the request for revision at the courthouse this week. I had a consultation this morning and was told most likely the first hearing will be an attempt at mediation and then if unresolved will go to trial.

Do I need an attorney for the mediation or will that be family only?
If they have an attorney, it would be prudent to seek out one for yourself as well, or you will be at a grave disadvantage.
 
Status
Not open for further replies.

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top