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Never married father has been caring for two kids for a year but has no custody orders

Your Question:
I have two boys. They are 2 and 4 years old. Their mother and I were engaged and I broke it off due to constant fighting around the kids and lack of any relationship between us. When she moved out she left our boys with me. Since Feb of 2005 I have been taking care of them 5 days out of the week. I taken them to the doctor and provided for them as 2 parents would. She sees them 2 days out of the week. I have not asked her for anything during this time. At most she has taken them to the doctor when I have not been able to. We were trying to work things out without going through the courts. Recently she has begun to threaten me. She says she needs money and can't afford to come and get them when its her time to see them. She is also planning to get government assistance by using the children. they do not live with her full time. She has a one bedroom apartment, works crazy hours in a retail store. I am also concerned about the fact that her new boyfriend moved in a week after she left. Also my youngest son makes some very sexual gestures as if he is witnessing something he shouldn't. My friends tell me she has abandoned them and I should have gotten custody a long time ago. I have always been told that I would lose in court. What can I do to make sure I get my kids. I dont want money from her.

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My Answer:

I asked you a few other questions to get a better sense of the situation. Nothing you wrote about the mother would fall into "abusive" in the court's eyes. The court may want the child evaluated as to the sexual gestures (e.g., could be a sign of molestation, could be an imitation of something seen, or could just be innocent exploration-- depending upon the actual behavior).

At this point in time, you'd be able to demonstrate that the children have been in your care and/or in your home the vast majority of the past year. You've provided them with stability (something the mother could not do), and their paternal grandmother provides care for them while you work.

Also, you've supported their frequent contact with the mother. No one could accuse you of not supporting the maternal bond.

By legal standards, you currently have no parental rights. You were never married. Until there is a court order finding you to be the father, never married mothers have 100% legal rights over the children. So, the mother could decide - at any time - that she's just going to hang on to the kids until a court orders otherwise.

Read that previous paragraph again. Fully digest what it means.

I strongly recommend you find an experienced family law attorney who has been practicing family law in your county for at least 10 years. This means that the lawyer will be familiar with the judges, the evaluators (if necessary), and the other attorneys.

You want to file a paternity action and seek immediate temporary orders for the status quo, as to avoid disrupted these kids' lives. You can file your pleadings with declarations from people who know you've been doing 80% of the parenting since February 2005.

Your battle gets infinitely more difficult if the mother takes the children and files her own pleadings first.

While the children are in your home, your chances are best. And because you want this all to happen IMMEDIATELY, there is no room for error. This is why you need an attorney.

Once you have your temporary orders to keep the parenting schedule the same as it's been for more than a year, the remainder of your custody situation will fall into place over time. Whomever starts out with majority custodial timeshare with the first set of court orders is MOST LIKELY to end up with it when a final judgment is later made.

Interview a few attorneys, go with the one who seems most experienced, and get it done. This may be a very easy and quick thing for you to accomplish, especially if the mother has no ability to pay for an attorney.

You may be able to file your papers (with a court hearing a few weeks out), and then invite your ex into mediation. If she settles in mediation for the current situation (and you agree to no child support), she may go for that. If you prevail in court, the court will order her to pay child support too.

If you file your papers, and if the mother immediately seizes the kids, your attorney may likely be able to go to court on Ex Parte (i.e., essentially an emergency hearing) for quick orders to prohibit the mother from disrupting the children's lives until the court can rule at the hearing.

Also, look at my Recommended Books page to see if any strike a chord with you. Educating yourself on child custody matters isn't a bad thing.


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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