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MOMDH · Oct 2, 2012, 11:00 AM

My husband's exwife is living with and has children with a man who drinks and has now kicked my 12 year old step son out of the house. The mother went along with it and brought him to our house for the night. Is this legal and do we have any recourse to keep him away from them? They have joint legal custody and she has sole physical custody.

JudyKayTee · Oct 2, 2012, 11:11 AM

Originally Posted by MOMDH

My husband's exwife is living with and has children with a man who drinks and has now kicked my 12 year old step son out of the house. The mother went along with it and brought him to our house for the night. Is this legal and do we have any recourse to keep him away from them? They have joint legal custody and she has sole physical custody.

Go to Court and get custody - PROVE she's unfit.

ScottGem · Oct 2, 2012, 11:17 AM

Let me get this straight, Your husband has a 12 yr old with his ex wife. The mother has physical custody. The man the ex is living with "kicked" the son out. The mother is living with this man, but they are not married.

In actuality it sounds like he told him to get out and the mother brought him to his father. Yes this is legal. The man (not a step father, just the mother's boyfriend) probably owns or is the lessor where she lives. It is illegal for him to turn a child out on the street, but it is not illegal if the mother drops the child off with a relative or other responsible adult, which appears to be what happened. She may have just wanted to get him out of the way until he calmed down.

Now the father can use this incident to go back to court and request a modification of the custody order. You can ask for an emergency hearing on temporary custody so that the mother can't require that the child is returned until a full hearing is held.

MOMDH · Oct 2, 2012, 11:18 AM

Originally Posted by JudyKayTee

Go to Court and get custody - PROVE she's unfit.

We've tried that... unless we can prove physical or sexual abuse of the child, we don't have a case. The child is adamant about not wanting to go back to their house, he wants to stay with us. She will not let him stay with us long term, just to spite my husband. He also has 2 other children with her. They don't seem to be a target though. She stated that she is trying to get him-her boyfriend, to get help and as soon as he calms down, the child can come back. Neither my husband nor myself want him back there. I feel like allowing your live in boyfrined to kick your own son out should be neglect.

MOMDH · Oct 2, 2012, 11:22 AM

Originally Posted by ScottGem

Let me get this straight, Your husband has a 12 yr old with his ex wife. The mother has physical custody. The man the ex is living with "kicked" the son out. The mother is living with this man, but they are not married.

In actuality it sounds like he told him to get out and the mother brought him to his father. Yes this is legal. The man (not a step father, just the mother's boyfriend) probably owns or is the lessor where she lives. It is illegal for him to turn a child out on the street, but it is not illegal if the mother drops the child off with a relative or other responsible adult, which appears to be what happened. She may have just wanted to get him out of the way until he calmed down.

Now the father can use this incident to go back to court and request a modification of the custody order. You can ask for an emergency hearing on temporary custody so that the mother can't require that the child is returned until a full hearing is held.

Scott,
Yes, that is correct. He told the mother to "find somewhere else for him to be, because he isn't going to live here anymore", he told the child to "pack you s$#( and get out!". They are co-lessors on the house according to the mother. I agree that she wanted him out till he calmed down, but he has threatened to do this for quite some time and finally has followed through.

We will contact an attorney to see what we need to do to get an emergency hearing. Until then though, I don't believe we can keep him against her will, meaning if she comes to get him, we have to let him go with her.

ScottGem · Oct 2, 2012, 11:25 AM

Originally Posted by MOMDH

I feel like allowing your live in boyfrined to kick your own son out should be neglect.

Again, that does NOT appear to be what happened. It appears the mother took her son to his father for a period. She did this to protect her son, certainly doesn't sound like neglect to me.

Since you don't know exactly what happened, its hard to prove unfitness. But you say you tried something but don't say what. Did you have an attorney? What reason did the mother give when she dropped off the son? Has this happened multiple times?

Originally Posted by MOMDH

We will contact an attorney to see what we need to do to get an emergency hearing. Until then though, I don't believe we can keep him against her will, meaning if she comes to get him, we have to let him go with her.

Yes, unless you can get a temporary order then you will have to give him back if she comes for him. She has primary custody.

The question is whether you can prove what you claim he said. But yes get an attorney and file ASAP. Keep us posted.

MOMDH · Oct 2, 2012, 11:35 AM

Originally Posted by ScottGem

Again, that does NOT appear to be what happened. It appears the mother took her son to his father for a period of time. She did this to protect her son, certainly doesn't sound like neglect to me.

Since you don't know exactly what happened, its hard to prove unfitness. But you say you tried something but don't say what. Did you have an attorney? What reason did the mother give when she dropped off the son? Has this happened multiple times?

Yes, unless you can get a temporary order then you will have to give him back if she comes for him. She has primary custody.

The question is whether you can prove what you claim he said. But yes get an attorney and file ASAP. Keep us posted.

Scott,
We have gone through an extensive interview with an attorney who is well versed in child custody cases and according to him, unless we can prove physical or sexual abuse, we do not have a case. Yes, she brought him to his father but not to protect him, but because she won't stand up to her boyfriend. She has stated that she is not afraid that he will harm the child, but that he "needs to calm down". Both the mother and child stated that the boyfriend was drunk at the time and according to the child he is drunk or drinking quite often. She has not dropped him off in the past, but the child has been telling us for the last 2 years that the boyfriend has threatened to kick him out.

JudyKayTee · Oct 2, 2012, 12:33 PM

Originally Posted by MOMDH

Scott,
We have gone through an extensive interview with an attorney who is well versed in child custody cases and according to him, unless we can prove physical or sexual abuse, we do not have a case. Yes, she brought him to his father but not to protect him, but because she won't stand up to her boyfriend. She has stated that she is not afraid that he will harm the child, but that he "needs to calm down". Both the mother and child stated that the boyfriend was drunk at the time and according to the child he is drunk or drinking quite often. She has not dropped him off in the past, but the child has been telling us for the last 2 years that the boyfriend has threatened to kick him out.

I never, ever second guess an Attorney unless it's my field, which is investigating matters.

I see no mention of emotional abuse - and this sure appears to qualify.

Has a Guardian ad Litem been appointed for the child? Does he see a therapist or counselor?

ScottGem · Oct 2, 2012, 03:05 PM

Originally Posted by MOMDH

Scott,
We have gone through an extensive interview with an attorney who is well versed in child custody cases and according to him, unless we can prove physical or sexual abuse, we do not have a case. Yes, she brought him to his father but not to protect him, but because she won't stand up to her boyfriend. She has stated that she is not afraid that he will harm the child, but that he "needs to calm down". Both the mother and child stated that the boyfriend was drunk at the time and according to the child he is drunk or drinking quite often. She has not dropped him off in the past, but the child has been telling us for the last 2 years that the boyfriend has threatened to kick him out.

I'd find another attorney. It's possible the attorney knows the local courts better than I do, but this seems enough to take it to a judge.

Did this happen just one time? At the least, I would tell the son to tell his story to a school counselor. This might get family services involved who will do an investigation.

brachotelohai · Oct 3, 2012, 10:24 AM

In VA the courts will take onto account the requests of the child if he/she is 12 or older. You may just want to take it to court asap anyway and take him with you for the judge to talk to. He can be placed on the stand as a witness.