Can one parent just leave with the child?

Question

My uncle and his live-in girlfriend have a son together. He is now 5 years old and was registered to start kindergarten in our area this month. His mother does not have a good track record, she has been arrested and has at least 2 DUI's and has had her driver's license revoked. She has violated her probation on several occasions and still has unpaid fines. She has no job and my uncle has supported her and their son for the past 5 years.

Today my uncle came home to an empty house. All of her and their son's belongings were gone and they were nowhere to be found. He called her cellphone all night with no response from her.

My uncle drove over one hundred miles to her cousin's house expecting to find her and their son staying there. They said no one had seen her, but my uncle saw a Uhaul truck a few streets over and when he drove by, he saw his girlfriend and his son sitting in the truck with another man. His girlfriend called the police, claiming my uncle had a gun and was stalking her. When the police arrived, my uncle explained the situation and they said legally she could just up and take him since they didnt have any established custody over their son. With that, he was told to leave, without his son.

So tonight my cousin is sleeping under a stranger's roof with a mother who seems to only care about herself. She has lost custody of her two other sons and now my uncle is seeking sole custody of his son. No one knows who she is with, where she is living or if my cousin is even ok.

He is going to talk to an attorney tomorrow which i know right now is the only thing he can really do, but when he called his lawyer this evening, they said they would file the papers but that this would be long and drawn out and if he can get his son back, it probably wont be for a while.

I myself am completely frustrated. I cant imagine how it is perfectly ok and legal for my cousins mother to just uproot him from his home weeks before he is to start school and moving him over a hundred miles away from his father to live with a stranger she was apparently cheating with without any notice whatsoever.

Thoughts? Opinions? Is there a loophole?

Answer 1

Legally she can't take the child without the father's permission.  It's kidnapping if they both have custody.  

Answer 2

He needs a lawyer!  

Answer 3

Your uncle should have established custody the minute that baby was born. Now the officers can't enforce any court papers and in the eyes of the law the girlfriend isn't breaking any laws.

Your uncle's best bet is to get a temporary custody order through his local court. Most places will grant emergency custody if the child is believed to be in danger.

Once he has custody he will have to prove to social services that he is fit to be the full time parent. That means a room for the child, a child care service and school. Good Luck

P.S. You don't know for sure if the man in the U-Haul truck was her boyfriend.  

Answer 4

There is a way to get this paper work so to say done faster. He needs to apply for immediate custody and can also get Alimony as well, if they were married, and if not then just immediate custody. If his attorney is telling him that is going to take awhile than he needs to get a different attorney, and maybe even call child services and see if they can get involved and help get his son removed immediately from his mothers custody and back to his home town, so he can start school. There are many loop holes, you just can not take NO for an answer. But time is the issue, he needs to get a good attorney and fast, before she thinks about getting one for herself. Tell your uncle that he needs to fight for his son.  

Answer 5

It's sad, but custody is a lot like property. Have you ever heard the term "possession is nine tenths of the law?" Custody works the same way. If there is no legal custody established, then one parent CAN just take the child and they have no technically done anything illegal. It is not kidnapping because it is their child and there is no legal document (like a custody order or judgement) saying that they can't.

Your uncle should speak to an attorney. He should also consider filing for full custody with supervised (or no) visitation for mom, given that she has fled with the child and has a criminal background. What she did is terrible, but it could ultimately help his case in the long run. Your uncle can file his petition under emergency status. He may be able to get a temporary order for custody in as little as 24 hours.  

Answer 6

Not really a loophole but you said it yourself, she is a bad mother and role-model her track record is not so good. She is a threat to her son and could be a danger. * (She's been arrested and has 2 DUI's and has had her driver's license revoked. She has violated her probation on several occasions and still has unpaid fines. She doesn't have a job and *my uncle has supported her and their son for the past 5 years.)

What you could do is summon her for a DNA test or hire private eye to track her down?..

Answer 7

nope thats kidnapping

Answer 8

Yes, one parent can leave with a child and it is not breaking any laws so long as any custody orders are not in effect.  Without a court order, it is generally assumed that both parents have custody but in cases like this, no laws have really been broken.  It may be even more difficult since they are not married.

He can try to file a petition with the family court for an emergency hearing to obtain temporary custody until the issue goes to court.  It might, or unfortunately might not, be successful.

Tell him to not only consult one lawyer, but two (or more).  Find one willing to fight for him, not just one willing to take on another case.