what can he do??

[df2006]

What is the name of your state? Rhode Island

The parents of a child are married, but separated, and have never established a custody agreement. The father, with very good reason, has been keeping the child in his care and refusing to let the child go back to the mother. He has been speaking to a lawyer, and the lawyer has already told him that he is not breaking the law because neither of the parents have more of a right to the child than the other. The child is not being properly cared for with the mother. The mother has a "job" that is first of all, illegal, secondly the mother is "working" all night, 8pm-8am... leaving the child with what the child says is "some Puerto Rican woman" and does not even know the womans name, but the child says she lives far away, near where her mother "works". The father is very concerned for his child when the child is with the mother. The father was at work and the child was at her aunts house. The mother arrived there, and when the aunt and uncle refused to turn the child over, the mother called the police. After the lieutenant spoke with the father's lawyer, it was determined that the child will leave with the mother, whether or not the father arrived there. Now the soonest the father can get his lawyer and get down to the court house and try to get any kind of court order is 3 days from now. The father strongly believes that the mother is planning on taking the child to another state to stay with her family, and he will not be able to find her. He has already filed for a hearing and has a date in March. Now he is afraid she will not be able to get served the papers considering that she is never home anymore and that she may take the child out of state. Is the anything at all he can do to at least ensure some kind of contact with the child until he can get to court? What exactly are his rights?What is the name of your state?

 

[BelizeBreeze]

As his attorney told him, he has just as much right to his child as does the mother. he should have filed the second he left (or she left) and now it's maybe too late to file for temporary custody but he should attempt to do so.

But, first things first. Was this HIS child or was the child born during the marriage?

 

[df2006]

It is their child together. Born before marriage, but theirs together non the less. He did try to get temporary custody, but they would not award it. He didnt have his lawyer yet and the judge said he didnt have enough proof. I mean, how do you prove someone is an escort?? He actually was supposed to give the lawyer the retainer fee next week. But I guess that was just too late. Can she really take the child out of state like that, without telling him and without him knowing exactly where to??

 

[BelizeBreeze]

The child is NOT his. In fact, he is also not the father. To be adjudicated the father he would need to file for custody AND paternity.

 

[df2006]

Yes the child is his... his name is on the birth certificate... it is his biological child...

 

[BelizeBreeze]

Yes the child is his... his name is on the birth certificate... it is his biological child...

no the child is NOT legally his. And if you want to argue then I suggest you go to law school

 

[df2006]

How is the child not legally his?? I dont get it?? Can you please explain??

 

[BelizeBreeze]

How is the child not legally his?? I dont get it?? Can you please explain??

Where did this custody order come from?

 

[df2006]

There is no custody agreement, thats the problem.... they are married so the lawyer told him that neither had more of a right than the other... he already filed for a hearing in order to get a custody order... I dont think you understood what I was saying... maybe you should read the original over again......

 

[BelizeBreeze]

There is no custody agreement, thats the problem.... they are married so the lawyer told him that neither had more of a right than the other... he already filed for a hearing in order to get a custody order... I dont think you understood what I was saying... maybe you should read the original over again......

The child was born before the marriage, therefore, the child has a LEGAL mother but no LEGAL father, regardless of whether or not the couple married after the birth. Absent a finding of paternity, the child has no father and therefore, your 'friend' has no legal standing to do anything.

Once the hearing is held and paternity is found to be him, THEN at that time he can petition for custody.

 

[CdwJava]

df2006, here's a link that might help:

http://www.cse.ri.gov/services/establishment_paternity.php

- Carl

 

[stealth2]

There is no custody agreement, thats the problem.... they are married so the lawyer told him that neither had more of a right than the other... he already filed for a hearing in order to get a custody order... I dont think you understood what I was saying... maybe you should read the original over again......

Did he tell the lawyer that they were NOT married when the child was born? He should likely check what RI statutes require to establish paternity. In some states, it is impossible for the male of an unmarried couple to be placed on the birth cert w/o a determination of paternity so being on the bc is an indication that paternity was established legally. In others, anyone can be named as the father on the bc, but that doesn't mean that paternity was LEGALLY established.

Regardless, she has the same right to take the child and bar contact with him as he's been doing to her. What's good for the gander, and all. He played a game, and now he's gotten bit in the butt by it. A judge won't be amused by either of their antics.

 

[df2006]

No, I dont think he did... I guess he didnt think it mattered.... Boy is this messed up... I am sure that his name is on the bc so I am sure that paternity was established... So what about the out of state thing... can she bring the child out of state in order to keep her away from the father??

 

[stealth2]

Absent a court order, she can take the child where she pleases.

And again, paternity may or may not have been established. Simply being named on the birth cert does NOT always mean it has been.

 

[CdwJava]

Absent a court order, it is very possible she CAN take the child out of state. However, there may be a RI statute that makes it unlawful for one parent to conceal the child or prevent visitation with the other. He may have to ask his attorney this question - or contact the police.

- Carl