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Never married father and toddler were abandoned by mother; with no court orders, mother recently snatched child back

Your Question:
I have a 2 yr old son and there are currently no official court orders regarding custody btwn me and the mother (we were never married). The mother had decided to move out of state a few months ago and came back to visit for Mother's Day wknd. The night before she was supposed to go back, she stole my son away in the middle of the night out of state. He has lived here his whole life, has other family here, and was enrolled in early pre-school, and she just snatched him away, completely disrupting his life (for the 2nd time - first time being when she decided to move). I've just filed for a SAPCR and we're in the process of trying to serve her, but I have reason to believe she isn't staying at the last known address she had given to me. Bottom line is, I'm trying to learn what my chances are for requiring that she bring him back to his "home state" either during the trial or pendency thereof, or more importantly getting a ruling that I'm the one who can determine his physical residence. My guess is that I won't like the answer....

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My Answer:

Thanks for writing, and sorry about this situation.

For the benefit of other readers, note that this person's biggest mistake was not getting court orders when the mother disappeared (or even before she disappeared).

An unwed father has NO PARENTAL RIGHTS until a court orders it. So, even though this dad has been the only parent for a few months, even though the mother essentially abandoned the toddler, this father suddenly has a huge uphill battle.

You need an aggressive attorney on this. I don't know if you can get emergency orders to keep the status quo (i.e., child primarily in your care) until further order of the court. You'd need to build a case to demonstrate your claim.

Testimony from the early-preschool program director can say that you were the only parent she saw from February (or whatever) through May. This would be a credible witness, and it would be important testimony to a judge ASAP.

If you believe the child is in danger, because the mother is an addict or emotionally unstable, that would help you get emergency orders.

If you believe that the mother is in hiding, you can show the court all the efforts you've made to locate her, call her, and write to her. It may or may not be relevant.

If you can keep jurisdiction in your county, that will help you a little bit. By filing locally, you've taken the first shot at that.

Your biggest enemy is time. I made that sentence bold to make sure you realize it. If you don't get orders quickly, the longer your child becomes acclimated to a new home, the less likely it will be that a court will want to disrupt it.

We're now five days after the child disappeared. Your attorney (you better have one-- use credit card or loans to retain an aggressive, experienced one) can't serve or locate the mother. You are fearful of the situation the child may be in. You have witnesses writing affadavits or coming to court to testify, and they corroborate that you have been the only parent for the past 4 months. All of this is correct, right?

If so, your attorney may be able to argue that the court must make temporary emergency orders to bring the child back to his primary home, pending further order of the court. As it is now, the mother has disappeared and is showing that she has no intent to co-parent cooperatively. Such orders would give the father the ability to search for the child and seek help from law enforcement to bring the child home; after which the father will comply with any further orders after the court has ability to examine the case and hear from the mother.

I really don't know if the above is legally possible. But it seems to be the only winning short-term strategy, in my eyes. Consult with a couple attorneys who have practiced family law IN YOUR COUNTY for at least 10 years. They'll know the judges, and they'll be able to let you know how feasible such an approach is.

You may spend $2k to $4k on an attorney just in the next month. But if you get a competent, savvy attorney who accomplishes this, that will be a fraction of the cost compared to what you'll face in the long-run.

If you can't get emergency orders for the return of the child, you're likely in for a multi-year custody battle, unless the mother is unfit. If she's not unfit, she will largely win her case merely by stalling the litigation for several months.

Get to it. Please let me know what happens.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

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