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Mother is primary caretaker for a year; father gave her daughter after he won custody; now father demands child back


Your Question:
My ex husband has 70% custody of our daughter, but over a year ago...he agreed to have our daughter (age 9 now) live with my new husband and I. He agreed to these terms only because he is single and has a "life." Along with the terms...he made it clear that he wasn't going to pay a dime for support for her...and I shouldn't bother asking (he is in the Air Force..making about 4,000.- a month and supporting only himself.)

Our daughter is thriving living with us. She has a wonderful relationship with her step-father and her two younger brothers. The relationship between her and I very strong...and she has a lot of respect for us and this family. My husband is a student minister at a local church and I am a stay at home mom. The income is so so....but we are getting by.

This last summer...my duaghter went to visit her father. To make a long story short...she came home saying things like "My dad didn't even spend time with me." and "All my dad cares about is his stupid car and dog." I don't know what happened....but she is still upset about how he treated her. Also..I had asked him to purchase a pair of sandals for her...and she came home with her old ones on her feet...2 sizes too small!!

During this year though...she has had to change schools and states because my husband recently got out of the military. We moved from CO to FL....and his new job fell through. We ended up living with his parents for about three months. Things have been kinda crazy....but we are trying very hard to get stable and in our own place.

About two weeks ago.....I filed for a change in custody and child support through the State of Alaska. I felt as if he needs to start being responsible for his daughter... and stop "playing" so much. As you can imagine...he was ticked!!

I received a phone call last night. He called to let me know that he doesn't agree with all the moving we have done recently and that our situation is unstable. He said since he has custody of her that will be picking her up and taking her back to TX with him.

The motion to change custody has already been sent to the court...does he have the right to remove her from her home with me because he is upset about me taking him back to court? Legally where do I stand? Do I have any rights? Does she? Since the motion is already in the process...legally can he do that? She cried herself to sleep last night because her dad wants t take her away from her home and her family.....HELP!!!!

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My Answer:
Hi,

Thanks for writing.

First, I am going to reem you for telling your daughter what the father has threatened. It is YOUR fault she is crying herself to sleep. You have no idea how this will play out, and you have needlessly burdened your child with this. I question your decision to do so. Every reader should take heed: parents should NEVER involve their children in conflicts that belong between parents.

In another email (not posted), I asked you a number of other questions that help clear up the situation for me.

You filed this custody change and request for child support in Alaska because that's where you divorced a decade ago. You've been living in your current state for six months. You lived in your previous state for three years.

Though I'm not an attorney, I'd suggest to you that Alaska isn't the venue for jurisdiction in your case. As a general rule, if a party is living in a state with a child for at least six months, the new state is an appropriate venue for jurisdiction. Given that neither parent has lived in Alaska for years, I can't imagine an Alaska judge would want to handle this.

So, I'd suggest that you consult with an attorney in your state, and if she/he confirms my understanding, you immediately file a Motion to Withdraw your Alaska actions. Serve that on the father too. Do that ASAP.

Now, on to your situation.

You and the father both have reasonable arguments for being primary caretaker.

The father's case:

  • A court previously found that it's in the child's best interest to live with the father 70% of the time.

  • In another email you provided (not posted), you said that you moved from CO to FL to live with your in-laws, and then you moved again into a friend's home, with intent to have your own place in April. That's four homes in less than a year. This is a sign of an unstable family, and it's a reasonable concern for a child's welfare.

  • The father has stable income and a stable home.

Your case:

  • You claim you have a 9 year old who doesn't want to live with her father. You may wish to have her discuss her feelings and experiences in his home with a child psychologist, where you aren't present. Such a person would be a valuable expert witness for you, and if you attend the sessions, it's easily dismissed as unspoken influence you have on your daughter to say what you want.

  • The father evidently didn't want to be bothered with raising this child anymore, and you took it on more than a year ago. He paid nothing to care for her. You now need his support to help with her rearing. At this point, no court has any record of the father even wanting the child back. Keep that in mind.

  • You're a stay at home mom, while the father works full-time. You're available after school, every day. You can stay home when she's sick, you can take her to any appointment or extra curricular activity at any time.

  • The daughter has been at the same school for this school year. She has just settled into it. It's not good to disrupt that again. This means that you should be looking at homes in the same school district, if you don't already realize that.

  • Your daughter has bonded with her two younger brothers (stepbrothers? half-brothers?), and realistically she will lose that bond if the father is the primary caretaker.

I think your biggest issue is the home stability thing. If you can sign a lease (or show a home purchase) prior to a court hearing, you have resolved that concern and reduced it to "temporary hardship due to temporary loss of income". The court knows such things happen, and you and your husband had to do what it took to survive this economic challenge in your home. If you can say you have never experienced anything like this before, that helps.

On where you go from here, when consulting with an attorney about jurisdiction, I'd suggest asking if it would be reasonable to ask for temporary, emergency orders for a change of custody and assignment of child support. You'd lay out your case (as I outlined above) and ask a court to rule to keep the status quo until further order of the court.

The argument for immediate orders is that you need financial help raising this child, which the father has refused to do for a year. And you can't get child support without a court finding that you're caring for this child the majority of the time.

I'd suggest that you take care of all of this by early next week. Put the motion to withdraw (in AK) and your Florida motions into the same package, and serve them together on the father.

If you can get those things filed in FL before he makes any attempt to pick up the child, I think you'll be fine.

I suggest that you not have any phone conversations with the father for a little while. Let him leave phone recordings or send email.

If he is dumb enough to leave a message or send an email demanding return of the child, in obvious reaction to your court filings, then you use that as evidence in your court hearing. It will be apparent to the judge that it's only an attempt to avoid paying child support.

I don't know the legality of what happens if the father shows up at your door, prior to any court ruling. That's why I strongly STRONGLY recommend you consult with a local attorney ASAP to ask those questions, and to see if there's any way to get emergency temporary orders to avoid disrupting this child's life until the court has an opportunity to examine the situation in further detail to assess best interest.

I know you're hard up for cash, but it'd be worth dropping a few hundred dollars to consult with a family law attorney in your county.

Good luck, and please do your best to shield your daughter from what's going on. I know you're panicked, but no need to involve her unless it's clear that the situation is going downhill and you need to prep her.

Eric





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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