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Never married father wants to know if he can keep child away from mother and then get sole custody

Your Question:
I am the single parent of a 10 month old daughter. I have been living with and providing a home for the mother(whom I was engaged to) another child of my fiances by a previous relation ship and my child since before my daughters birth.

I want to know if I can get temporary custody of my daughter until a court hearing and how hard it would be. What are my rights as far as keeping my daughter with me while I await a court hearing? What do I need to do to keep her with me? Can her mother come and just take her?

I feel it would be in the best interest of my daughter to be in the care of my mother and myself. I don't want to keep her mother from seeing her, but feel she would be better cared for in my custody. I have her right now, but am in constant fear that Law Enforcement will come take her.

I asked for more details, and you continued to write (I changed the names from your original post)...

She is a former drug user and I just discovered today she probably still is, but I cannot prove it. She left our home one evening around 4pm and didn't return until the next day. I worry about what type of people she will have my daughter around. (possible drugs users)

I took my daughter and went to my mothers house after my fiancÚ did not return to our home for 17 hours. She stayed gone all night. She has threatened to have the police come take my daughter from me. I feel my daughter is safer with me and in a better environment. My mother is helping me care for her right now.

My fiancÚ is the mother of 3 young children by 3 different fathers: Frank lives with his father but visits with us every other weekend. I have a good relation with his father. Isabella lived at home with us because her father is a drug addict and has no contact with his daughter. I am the only father she has ever known. I love her like she is mine. My daughter is less than a year old and lived with us.

It was our weekend to have Frank and my fiancÚ picked him up on Friday. I was at work and she called and said she was going out and she had got someone to sit with the 3 kids. When I ask who... it was two teenagers who are untrustworthy. I called my mom from my job and ask if she could go over there and get my daughter and keep her over night until I got off work in the morning. The next day my fiancÚ told me she needed some time to herself. She left me with my daughter and her two other children. She did not return home that night.

I called Frank's father and told him what had happened and ask if he would come get Frank. He came and got Frank. I took the two girls to my mother's and told my fiancee to pick up Isabella there. I went to my mothers home and I am staying there. My fiancÚ is threatening to bring the police and take my daughter.

I need to know if she can just come get my daughter. We are not married but my name is on my daughters birth certificate.

I am not Isabella's father, but do I have any rights where she is concerned. My whole family has accepted her as my daughter also. We love her very much.

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My Answer:

Thanks for writing.

Man, oh man, you may be in for a world of hurt. As far as the law is concerned, you have abducted a child. If you were never married, you have absolutely no parental rights without a court order. Only the mother has custodial rights, until a court orders otherwise. So, you have essentially assigned yourself as sole custodian and judge, without any court proceeding. Not good.

On the other hand, you can argue that the mother abandoned the child, and you acted in the child's best interest.

Your best shot is to strike first. If the mother strikes first, your situation becomes much more difficulty.

Regardless, here's what you need to do TODAY, before the mother starts seeking prosecution and realizes all the damage she can do to you:

  • Find and retain a family law attorney in your county. Pick one who has at least 10 years experience practicing family law in your county. Do a quick check with the state bar to ensure the attorney has never had any disciplinary actions. Time is of the essence here, so you can't do a thorough job interviewing and thinking about which attorney to pick. The first one you find with at least 10 years of experience in your county, and who has never faced any disciplinary action with the state bar... retain that attorney. Expect a retainer fee to be $2000 to $5000. Put it on a credit card, borrow it from family, whatever you need to do. Keep in mind that if the mother seeks prosecution or legal action for abduction-- regardless of whether or not there's merit to her case-- you'll pay a criminal defense attorney a good chunk of change to resolve it. So, retaining a family law attorney TODAY is prudent.

  • Upon finding your family law attorney, explore options for an emergency hearing to get temporary custody while simultaneously filing a paternity action. It helps that you're on the birth certificate, and you may want to do a DNA test immediately too. By the time you appear in court (i.e., this week if emergency hearing is warranted, or within several weeks if not), you want to give the court no doubt that you are the father.

  • Get an affadavit (i.e., a sworn written declaration) from the oldest child's father, with whom you say you have a good relationship. Have him write why he got primary custody of the child, and his impression of the mother's parenting skills. Such can only help you.

  • See if your attorney would recommend asking the court to order drug testing immediately, as part of going before the court. Offer to take it yourself, too. If the mother fails the test (or refuses to comply with the court order), your chances of securing custody really increase.

  • Depending upon your access to funds, consider hiring a private investigator to tail the mother and document any drug use or drinking/driving. If you can have that evidence in place before the first court hearing, you're golden.

So, those are all the things you need to be doing RIGHT NOW. Take vacation time or sick days from work. You have quite a bit you need to get done ASAP before your stupidity starts to deliver some potential consequences. I use the word "stupidity" to emphasize that a person cannot simply take the law into their own hands. All good parents can understand why you did this, but you MUST respect the law if you expect to prevail in court... else you suddenly get to see your name and license plate on an Amber Alert. Got that?

Right now, focus on your own daughter. Your "stepdaughter" (so to speak) is a much more challenging case. You may or may not have any rights in that case. However, if you end up securing joint or sole custody of your own daughter, it becomes easier to look at the other child.

Think about what you have to do in your own life to ensure you're available to raise a child. A parent who works 12 hours a day is not too available. If you can move in with your parents, cut your work to 6-8 hours a day, and use the well-bonded and loving grandparents as daycare, that's a much better scenario in which to raise a child.

Finally, order the book "Win Your Child Custody War" by Hardwick. I describe it on my What You Must Have page, and for a situation like yours, it's worth its weight in gold. You speculate on many bad things about the mother, and no guessing will count for anything in court... you'll lose. This book will help guide you on crafting solid arguments with evidence.

It seems like every couple of months I encounter someone who needs a kick in the butt to fully realize how critical timing is. I'm kicking your butt-- you can't delay on taking legal action.

Get cracking and good luck.


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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