Experiences with Dad's winning custody? (vent and long)

[KimRaye]

Brief history: Brother married and divorced. He got custody of my nephew, mother didn't want him. That's good & sad all at once, I know.

Fast forward, he remarries same woman/mother. Now, about another 5 years in, she files again for divorce. This time she wants nephew. (I suspect she only wants the child support $$ actually, jmo.) The papers were filed back in August, just in time for nephew's 10th BD. Today, she announces to brother & nephew that she & nephew are moving out (FINALLY, for her, anyway) on 3/27 and, she's taking nephew. I don't see HOW she can uproot nephew like that, especially since there is a current custody battle. I'm soo confused.

Poor nephew finally broke down tonight, too. My heart just breaks. He asked her, "Why can't I choose?" Good question and, obviously, in brother's favor.

My mother is convinced brother will lose this time, simply because mother's are favored. I disagree but, I've been known to be naive on more than one occasion. Don't they (judges/mediators) LISTEN to the parties? Do they ask about future plans/intentions for the child? Isn't it the "best interest of the child"?

They have ONE mediation appointment before 3/27 and, sil must think that this will allow her the right to take nephew from the home. You think so??

Currently, sil spends most nights away from home, without any parental responsibility for either of her children (she also has a teenager from a former-former marriage). Sil goes to a LOT of AA meetings and, mostly relies on her teenage daughter to 'watch' nephew, when my brother isn't home, which isn't that often but, the daughter is not reliable in any way. Also, when sil moves, the daughter is NOT moving with her, she's moving somewhere else!!! So, sil will no longer have her neighbors OR her daughter for a babysitter.

My brother has been through this before and, with the help of our family, we ALL helped to see them through, i.e. 'baby'sitting, rides to and from, etc., like many families do. Sil has NO family close and, they have little to no contact with her anyway.

I'm just so frustrated and, kinda mad, AGAIN, over this whole thing, especially now that my nephew has broke down and expressed his wishes to his mom. Poor thing.

So, bottom line, do any of you/how many of you know of dad's winning custody? Mind you, this is just for custodial rights, they DO agree on joint custody with visitation. Were there circumstances? (only IF you wish to discuss, of course)

Sorry for the looonnnggg ramble and vent. It makes me so sad tho.

TIA

 

[Tuffcookie]

KimRaye, What a shame they got back together to only end up like this again! He should push for the court to assign a guardian ad litem. They will investigate and make a recommendation as to whom the child would be better off with.

TC

 

[KimRaye]

Thanks TC! Believe you me, our family was Against the remarriage AFTER we found out about it! I THINK after the next mediation, a guardian will or, will have to be, appointed. I think that's only fair right now, really. Sad but, fair. My brother does not want to drag nephew thru this but, seriously, this kid has been thru this once before also.

 

[Melora]

Now a days I think the court likes to see a dad show interest. I have a complaint about one of my best friends in regards to this where the courts granted the dad more custody then he should have. I will post it on another thread so as not to highjack yours, but at least in California its not a mom only thing.

 

[Alice28]

I think your brother has a decent chance; a friend of ours fought for custody of his kids and he won. I don't think courts are all that biased towards the moms as they used to be.

 

[KimRaye]

Thanks Melora and Alice! I was HOPING that Dad's have rights these days, too!

Melora, feel free to post here, too, if you want! I asked for circumstances, etc. IF you wanted.

I soooo hope my brother wins custodial rights but, I'm also biased.

 

[Big V]

I hope everything turns out all right for your Brother and Nephew Kim.

 

[mudnuri]

If custody was orginally granted to your brother, even though they got remarried, she NEVER got custody...unless your brother and sil went back to court and stated that he was to give up custody and turn it into joint custody.. court orders dont just "end"...

Courts are fair when it comes to children...some states will allow a 10 year old to talk to the judge alone, and tell the judge what they want, this is then weighed into the final order...

Good luck

also- he may want to start a journal with when she's home, when she's gone, where she is, and whose watching the boy when she isnt home.

Brandy

 

[aprilgail2]

My firends kids are now 16 and 14 and he had been fighting for custody since they were 3 and 5. He finally won! I always thought that once they were old enough they could choose but I was wrong, even the older boy who was 15 at the time of the last custody fight couldn't choose unless there was a darn good reason and this time there was. THe kids were appointed their own legal gaurdian and he helped them. The really crappy thing is that even though my firend has been paying 200 a week child support, their health insurance and half the medical bills all these years he won't be getting a penny from her because she quit her job, which was a really good one, and decided to stay at home with another kid she has with her current husband. In most cases even when the guy wins he looses.

 

[Dan Murphy]

I have no idea how things like this work, Kim, but do want you to know I am hoping all works out well for everyone concerned. My very best.

 

[CBRorBust]

Well.

I don't want to rain on anyone's parade, but...

I know that you and your family are in for a long road ahead of you. My neighbor has been in a custody battle for his child's entire life! (They split up *right* after he was born, and she left him!)

They have been in and out of court for years now. It's hard. But like others have said, there are a lot of groups out there right now that are willing to help single dads!

Good Luck!

 

[CRB#33]

Kim, a very sad situation.

From my experience, it seems to go by counties and states. For example, in my county in Pennsylvania, the father would only be awarded custody IF the mother was an addict or an abuser AND proven to be.

Then the father would get custody, but if the mother cleaned up her act, and the children were your nephews age, she would most likely get them back.

Your brother should ask his lawyer where the case would be fought, what the current odds are. His lawyer should know the answer to this.

Best of luck and Hugs to that poor little boy caught in the middle.

 

[Briar Rose 7457]

are you an attorney, mudnuri?

I am.

this is a complicated legal question, one I wouldn't answer without several hours of research into the laws of the state where both parents and the child reside.

kimraye, generally speaking, both parents are assumed to be the natural custodians of their children. even when one parent "loses custody" because the court awards custody to the other parent, the noncustodial parent does not lose any parental rights unless the court specifically rules to that effect. i.e., if your brother had died during the period that he and his wife were legally divorced, his ex wife would be assumed to have custody of their son.

if your brother was awarded custody as part of the divorce decree -- well, here in NY such a decree becomes a nullity if the parties remarry.

as for fathers winning custody, in most states the laws a re gender-neutral. there has been some pro-mother bias in the courts, but that is slowly changing. a neighbor of mine has had legal and physical custody of his sons for several years now, and his ex wife is currently serving a sentence in fedeal rpison because she quit her job and moved to flordia to avoid paying child support.

sometimes custody battles can go on ad nauseum. my girls are 13 and 11, my ex and I have been separated/divorced since 1994, and my ex and I were in court last year as he made yet another attempt to get custody. at this point, his older daughter refuses to spend a night under his roof, and his younger daughter goes with him reluctantly. sigh.

 

[luvmarypoppins]

Wow, I hope things work out. Such a sad situation.

Briar Rose - can I ask you a question. Our friend on LI had custody of his 2 kids, then ex wife comes back after 4 years and petitioned for custody. She originally left because she did not want to deal with autistic son. Also have another older daughter. Judge now decided to give custody back to mom solely based on her income and ability to provide for them. He makes like $22K and she makes $60K. She has a live in boyfriend. Our friend "Mark" has noticed bruises on his disabled son. He has filed police reports. I don't know what else he can do as he had to sell his house to pay court and lawyer. His dad was also living with him, so he was the built in babysitter. Any advice?

 

[Briar Rose 7457]

I'm sending a PM.

the best advice is document, docuemnt, document. and get a neutral to document.

 

[Kitty 34]

Kim, I sure hope all works out for your nephew and for your brother. {{{{HUGS}}}} my friend.

 

[mcnuss]

Originally posted by Briar Rose 7457
are you an attorney, mudnuri?

I am.

this is a complicated legal question, one I wouldn't answer without several hours of research into the laws of the state where both parents and the child reside.

kimraye, generally speaking, both parents are assumed to be the natural custodians of their children. even when one parent "loses custody" because the court awards custody to the other parent, the noncustodial parent does not lose any parental rights unless the court specifically rules to that effect. i.e., if your brother had died during the period that he and his wife were legally divorced, his ex wife would be assumed to have custody of their son.

if your brother was awarded custody as part of the divorce decree -- well, here in NY such a decree becomes a nullity if the parties remarry.

as for fathers winning custody, in most states the laws a re gender-neutral. there has been some pro-mother bias in the courts, but that is slowly changing.

In general, the standard for custody is "best interest of the child". The court will review information from many parties to come to its decision. Here in NH, it would be very unusual for the court to hear a 10 yo, it is more likely that the child's interests would be served by a guardian ad litem.

The best advice I can give you is to tell your brother to get a good lawyer, he is going to need one. He can get a referral from the local bar association. He should ask any lawyer he meets what his or her experience is in custody matters, and what her approach to these matters is. It is important that he pick a lawyer that he trusts and feels comfortable with as it's likely to be a long-term relationship.

 

[Briar Rose 7457]

ten points off the exam for the lawyer giving an incomplete answer. I presumed that kimraye already knew that the law was "best interests of the child."

but before a court can award custody it needs to know what the state of custody is in the first instance.

parents are presumed to be the natural custodians of their children. generally we don't get to the "best interests" standard if the person seeking custody is not a parent, unless there's a reason to terminate parental rights.

mudnuri said that the mother does not have custody. mudnuri is very likely wrong.

 

[KimRaye]

Originally posted by Briar Rose 7457
but before a court can award custody it needs to know what the state of custody is in the first instance.

Do you mean how things are right now? Like, how often she isn't home, how much he does for nephew, stuff like that? I don't want to make my brother sound like some angel, he is the Dad and, is doing what any Dad would do, imo. But, when compared to sil, he IS the better parent just by presence alone, imo.

And, he does have a lawyer, he's had one since August when he was served. Not sure how good she is but, she's free through his union benefits.

And, BR, I know this is Illinois but, in your opinion, can she just take nephew from the home when she leaves, given the current custody issue?

Thanks everyone.

 

[Briar Rose 7457]

that's what I'm trying to get at, kimraye. I don't know if she legally shares custody with him. not whether she's a good mother or whether she leaves the kids with him, but the legal status of the parties.

if they'd never been divorced, if there hadn't been a prior court ruling on custody, the answer is much more simple -- if both parents share custody, can one parent leave with the child? probably yes.

but does she have any legal custody rights, given the prior court order? I don't know.

you siad they're going to mediation on 3/27. is there a divorce action pending? he should talk to his lawyer about getting a temporary order awarding him sole custody and preventing her from removing the child from the marital residence until the issues can be resolved by the court.