**URGENT** Custodial parent (mother) going to jail - How can father get custody?

[mama2b]

What is the name of your state? Utah

My brother's ex-girlfriend currently has custody of their two children. She was recently arrested on felony charges of forgery (this is the second time) and has court for her sentencing in two days.

Their current child care and visitation arrangement (because the mother couldn't find affordable child care) has my brother's current girlfriend babysitting both kids all day every day while their mother works. My brother has them every weekend and one full week each month.

Originally, when convicted of this second felony, the mother called my brother and told him that he would get his kids if she had to go to jail. She has since contacted him and told him that he would NOT be getting his kids and that she has made other arrangements for their care.

What can/does my brother need to do to make sure that he will get custody of his children if their mother goes to jail? Would it help for him to be at her court sentencing? Can he bring it up then? Does he need to contact the Division of Child & Family Services?

Any advice on this matter would be greatly appreciated.What is the name of your state?

 

[CourtClerk]

First of all, is there a legal adjudication of paternity regarding your brother and the children? Is there an existing custody order and does he know what her plans are for the children once she goes to prison?

My answer as to what to do follows.

 

[CourtClerk]

Now... if there is a legal adjudication of paternity (assuming they were not married), then what he simply needs to do is go get his children the minute the State of Utah takes custody of her. She does not have the right to summarily decide that dad doesn't get to care for their children in the event of her absence.

Not that it matters much in this case, but does the order speak anything on right of first refusal?

If your brother really wants to make it clean, he can go into court tomorrow on an ex parte to modify the custody order (provided again, there is one). See how quickly they can get him into court in order to memorialize this whole thing on paper, but again, if there is a legal adjudication of paternity and custody, your brother has as much right to those children as she does.

Good luck

 

[mama2b]

Yes, paternity has been established. She was granted custody of the children and lied to have a protective order against my brother (but that is another story)... He is allowed to contact her regarding the children and visitation via phone and someone else has to pick up the children and drop them off. The judge granted my brother "standard visitation" rights (here in Utah it's every other weekend, one day a week, and designated holidays)... but as stated previously, his current girlfriend takes care of them all day during the week, he has them EVERY weekend and one full week a month (as agreed upon between my brother and the children's mother). Does the current visition schedule set some kind of precendent that shows that the mother trusts the children in their father's care which might override her choice for childcare should she go to jail?

My brother has not been in a financial position where he can afford an attorney, so he has been at the mercy of his ex-girlfriend who has been dangling the protective order over his head. When it is convenient for her, she allows him all the visitation and liberties to pick up the kids and when she wants to get back at him, she threatens to "trap" him by calling the police. I have made sure that my brother honors the protective order to keep himself out of trouble but I am concerned about the recent turn of events.

She already has a felony on her record for forgery so I believe it's a good probability that she will be going to jail again this time. She won't tell my brother what arrangements she has made for the children and is being very secretive. I believe it is because she doesn't want to lose custody but I don't know for sure.

Thanks again for your help.

 

[mama2b]

There is no mention of "Right of First Refusal"... Will that be a problem? Will he need to contact some type of authority to get his kids the moment she is in custody?

I'm concerned that she is keeping the childcare provider a secret so that he won't be able to get his kids and she will still have control over the situation. Is the only way to force the issue through a child custody hearing in court?

 

[CourtClerk]

Yes, paternity has been established. She was granted custody of the children and lied to have a protective order against my brother (but that is another story)... He is allowed to contact her regarding the children and visitation via phone and someone else has to pick up the children and drop them off. The judge granted my brother "standard visitation" rights (here in Utah it's every other weekend, one day a week, and designated holidays)... but as stated previously, his current girlfriend takes care of them all day during the week, he has them EVERY weekend and one full week a month (as agreed upon between my brother and the children's mother). Does the current visition schedule set some kind of precendent that shows that the mother trusts the children in their father's care which might override her choice for childcare should she go to jail?

The visitation schedule IMO has nothing to do with this, because it presumes that the children will be with the custodial parent. If the custodial parent is in PRISON..., I say he should get custody... yes, the fact that she allows him to have the children even outside of the visitation order says that she thinks he's a suitable parent...

My brother has not been in a financial position where he can afford an attorney, so he has been at the mercy of his ex-girlfriend who has been dangling the protective order over his head. When it is convenient for her, she allows him all the visitation and liberties to pick up the kids and when she wants to get back at him, she threatens to "trap" him by calling the police. I have made sure that my brother honors the protective order to keep himself out of trouble but I am concerned about the recent turn of events.

Can he enlist the services of legal aid?

She already has a felony on her record for forgery so I believe it's a good probability that she will be going to jail again this time. She won't tell my brother what arrangements she has made for the children and is being very secretive. I believe it is because she doesn't want to lose custody but I don't know for sure.

Thanks again for your help.

The reason why I asked about her arrangments is because he's going to have to know where the kids are even if the judge grants him custody. He has to go get them from somewhere... It really would be a good idea if family members can pool their finances for an attorney... really it would. It's money well spent.

 

[LdiJ]

There is no mention of "Right of First Refusal"... Will that be a problem? Will he need to contact some type of authority to get his kids the moment she is in custody?

I'm concerned that she is keeping the childcare provider a secret so that he won't be able to get his kids and she will still have control over the situation. Is the only way to force the issue through a child custody hearing in court?

Its possible that an emergency trip to court may be necessary. Particularly if dad doesn't currently have joint legal custody.

 

[CourtClerk]

There is no mention of "Right of First Refusal"... Will that be a problem? Will he need to contact some type of authority to get his kids the moment she is in custody?

Don't think it should be an issue... but in this case it would have been great if it were there.

I'm concerned that she is keeping the childcare provider a secret so that he won't be able to get his kids and she will still have control over the situation. Is the only way to force the issue through a child custody hearing in court?

It may be the only way to force the issue if whoever has them isn't willingly going to give them up once she is incarcerated.

 

[CourtClerk]

Its possible that an emergency trip to court may be necessary. Particularly if dad doesn't currently have joint legal custody.

And I would make that trip tomorrow morning, particularly if she is being sentenced this week.

 

[LdiJ]

And I would make that trip tomorrow morning, particularly if she is being sentenced this week.

That's problematic when he doesn't know what her sentence is yet. If somehow she manages to get probation or house arrest, it will change the nature of things.

 

[mama2b]

Apparently, at $11/hr, he makes too much for legal aid.... We will have to see what we can do for him. I appreciate all your input.

 

[mama2b]

That's problematic when he doesn't know what her sentence is yet. If somehow she manages to get probation or house arrest, it will change the nature of things.

I was worried about something like that as well... What do you think a better option would be? He is currently planning on showing up at her sentencing hearing on the advice of someone who used to work for DCFS but I am concerned that might be a problem because of his protective order...

 

[Zephyr]

I was worried about something like that as well... What do you think a better option would be? He is currently planning on showing up at her sentencing hearing on the advice of someone who used to work for DCFS but I am concerned that might be a problem because of his protective order...

he could have somebody go for him....all he needs to know is when she goes in and how long she will be in....

if he has the children in his custody already when she goes in then he doesn't HAVE to release the child to anyone else

if mom has the child in her custody when she goes in it could get a little dicier....I don't know why this particular issue would be a problem to represent oneself for though...it's unlikely the judge will order the child to be kept by a non parent when there is a fit parent ready and willing to provide care for the child

 

[LdiJ]

I was worried about something like that as well... What do you think a better option would be? He is currently planning on showing up at her sentencing hearing on the advice of someone who used to work for DCFS but I am concerned that might be a problem because of his protective order...

Have someone else show up at the sentencing to find out what gets ordered. If she is jailed, then he should immediately file a motion for emergency custody.

His emergency motion would be heard in a different court anyway...so the important thing is to find out her sentence, quickly. He doesn't have to be there for that, someone else can do it for him.