father's rights? -any experts?

[d346]

warning: long post!

 

my fiancé has a 10 yr old son, who was conceived with a high school girlfriend. They were minors, so had delegated official custody to "grandma" (who she lived with at the time.) -they were never married

 

10 yrs later, both have been to college, grown, and although the son has lived full time with the mom, my fiancé has a loving and active relationship with him. They never went back to court, or done anything legal, but they amicably decided upon monthly child support, school tuition, visitation, the nights he would stay with dad, etc.

 

A little background on mom: She is a decent mother, but has made some BAD decisions in her life since. Got pregnant again, moved in with that guy with his son (in another county) –broke up with him, and moved back home –making his son switch schools literally overnight. Currently her custody situation with this other man is a strict 3days on 3days off rotation –between counties. –and it's about a 40min drive for her. She again, had another child since with another man. This man she ended up marrying.

 

Recently my fiancé and I bought a house near his son's school. He wants to be closer, since he's very active in his sports, etc. And would love to have stay him over on weeknights. The mom now states that she wants to move back to the county of her second son, and take my fiance's son with her –a move that is over an hour away from us. BUT she has no solid plans yet…"sometime next summer" and claims that she chose this location because it's all she can afford (looking to buy a home…and it's NOT a nice area) My fiance's son has been told by his mom that he will be switching schools the year after next, and will no longer be playing on his sports teams. He's a great kid, and loves his mom very much, so he isn't making waves –but he started crying yesterday because he doesn't want to switch schools or move away from his dad and family (his extended family all live nearby, and have practically helped raise him).

 

Ideally, we wish to convince his mom to stay in the area. Simply talking to her isn't really an option. Done that. We know that we can't be as active, if he moves away. We also know that the sports aren't important to her, and without us helping out, he probably will sit at home and watch tv –or end up babysitting his brothers. We could try to keep him with us full time, but it would be a costly court battle (don't know if we'd win) and not necessarily in the best interest , since his son loves both parents dearly (and now has brothers that with his mother), and we don't want to make this hostile –and make him choose.

 

Any advice? Can we file an order to not allow her to move? What's involved?

[avman]

This is a tricky situation, and the laws vary by location.

 

In general, fathers of a child have no automatic legal custody rights if they are not married to the mother. That is because paternity must be formally established via testing whereas maternity does not (if the baby comes out of you, obviously it is yours). So most places set the mother as having sole custody.

 

I seriously doubt you can file any order for her not to move. She's got sole custody, so it is totally within her right to move anywhere she likes. Your fiance never established paternity, so he's got no say in the matter. He could file for paternity and wage a custody battle, but I wouldn't recommend it. She could turn around and sue for back child support if he ever paid less than state guidelines - and she'd win easily. And as you already said, you aren't sure it's in the child's best interest. That has to be your top priority when making any decision.

 

My advice would be to try and work something out with the mother. Maybe even try a mediation or something. You've kept things civil so far, so try and keep things that way. If you provoke her, she could make it incredibly difficult for you to even see the child at all. Then you'll be tied up in court forever and likely not get much more visitation than you already have.

[DN]

You have to see a lawyer for this one - laws vary from state to state and even then the variables in each case make it almost impossible to give good advice on here.

[d346]

actually, I think grandma still has official custody! we're going to get a lawyer involved. Ideally, we'd like to amicably establish official joint custody (he can even still live with her if she wants that -fiance just wants say in important decisions)

 

fiance just talked to her -it started as a hostile argument that ended a little more calmly. Apparently she is freaking out that we bought a house. No one is trying to take him away from her -we just want to settle down nearby her current residence, so we can help keep things easy and "status quo" It's not fair that we wait a couple years to buy our house - to see what she does -since history has told, she doesn't really think things through

[Falucchi]

Get a family law attorney.

 

incidentally, why shouldn't the boy's dad want to gain full custody of his son? There's nothing "wrong" with that, and given the woman's track record, might be beneficial to the boy to live with you-- after the wedding of course.

 

I wish you the best.

[d346]

well, we never suggested full custody, but she on her own scoffed at the idea, that she'd never "let us take her son from her." I think she said that when my fiance suggested he stay at our place during the week so he could stay at his school and in his sports.

 

Then she went on a tirade about him not being able to pull it off, -criticizing him for working and not being able to pick him up from school at 3. She claims that she will be a full time stay at home mom living off her husband's income. A choice that has merit, BUT she always has a bunch of odd jobs to pay the bills...,-and ironically is dumping her kids off at grandma's nearby. 4 out of 10 times we take his son home, she tells us to drop him off at grandma's. If she moves, we don't understand how she's going to manage without grandma nearby..

 

sigh...

[avman]

incidentally, why shouldn't the boy's dad want to gain full custody of his son? There's nothing "wrong" with that, and given the woman's track record, might be beneficial to the boy to live with you-- after the wedding of course.

 

There's nothing wrong with that of course. I'm just saying it would involve a serious fight. And courts hate to disturb the status quo without a very compelling reason. If the child is happy and healthy, and the mother isn't abusive or a drug addict or something like that I just can't see the court altering physical custody. Nothing is impossible, but I'd hate to see you all spend a bunch of money fighting about it (and the money is better spent on the child anyway) only to have things end up the same way except that now both sides are incredibly hostile to each other.

 

But definitely talk to an attorney. They do this every day and are much more up to speed on your local laws, the attitude of the judges in your area, and can give you the best read on how you might prevail in court.

[ComputerGuy]

I dont know what its like in America, but here in Australia...as I learnt first hand from my childhood, sole custody battles are a almost a lost cause for the father to a point where they dont even bother and even joint custody is hard to achieve. While the legal system is structured and set fairly, the bias is very prominent, and I know a lot of cases where a mother was unemployed, behind in rent, in a bad area where the kids were left alone regularly and where she had multiple guys come and go and even then she still got custody over the home owning, married, stably employed father.

 

I cant offer any advice, all I can offer is what I have come to expect from experience with stuff like this.