My husbands ex-wife die. They were married religiously but not legally. Following the death the grandparents have held his daughter in their care and refuse my husband physical contact or communication stating the will leave it for his daughter to decide and claiming that their deceased daughter signed over custody to them. It's now almost two years and we continue to pursue this matter in court. Should he at this point just file for custody against the deceased? Does he automatically have legal custody and/or physical custody? If so will courts will view this as abandonment? Please, please help.

Was he on the birth certificate or ever declared legally the father in court ?

If so, he by default had custody of the child unless there was some other court action.

I don't see how she gave custody of her child to grandparents, maybe guardianship not custody.

But you merely file for custody, not against anyone, merely file for custody

Yes he is on the birth certificate. Similar to the question you answered for catsgrma they had a notarized statement saying the child lives with them in order for her to attend school in their district however the child support documents state that she lived with her mother and we never paid support to the grandparents.

First, a parent cannot will a child to anyone. Second, the nature of the marriage does not matter. What matters is whether your husband is the legal father.

If he is, then he should apply for custody. Should have done so as soon as the mother died. The courts will then determine who has legal rights here.

Well we had attempted to get the child with and emergency pickup order soon after the death but they used the notarized doc and the cops backed away.

Cops will generally do that if there is any dispute on a civil matter. So as soon as this happened, why did you not go back to court to enforce the pickup order. The court would then issue a subpoena to bring the child into court. Or at least ordered a hearing. What have you been doing for the past 2 years?

Dealing with unsuccessful meditations, waiting games and stall tactics on their side. We, having no representation have been cautious and unsure of what to do. They have attempting guardianship and my husband thought that filing for custody would give them some sort of advantage. I think he assumed it would make them look as though they had custody.

He is applying for PHYSICAL custody and seeking to end their guardianship.

But the bottom line is if he is the legal father and had joint legal custody, then their taking guardianship is without legal merit.

Another suggestion is to check with a local law school. Many run clinics that will help with the legal paperwork and advise on strategy.

So proof of legal fatherhood equates joint legal custody without requiring any other paperwork but the birth certificate or would he have had to have some other documents to prove joint legal custody?

It depends.Was there a divorce? If there is a child support order was there a custody order? We need to know what happened when they split or divorced.

I will say that if you don't have an attorney and they do have an attorney they can drag this out till the child is in college doing things that you don't understand, or make you do small mistakes.

But yes as soon as you were issued a order to pick up the child, you need or needed nothing else.
You then took them back to court for contempt

The was a religious marriage/divorce after that they worked out the details of child support amongst themselves. That went along for some time and then the mother decided to file for child support with the state. He paid and then after her death he stopped the order for support. The state agreed and it was handled in writing with the proof of death. However the county wanted a hearing to discuss it because the grandparents filed an order to reopen/continue the support even though the are not entitled to receive it. So this is where we are as of today; a notice of hearing to terminate child support and vacate ido

Funny Fr_Chuck that's exactly what I was thinking because the way things looked it seemed they didn't have any ground to stand on so the best thing to do was to drag it out till she is in college and wait for us to screw up along the way. Sigh, so frustrating.

I will give you an example of what I had to do, I had a court order from my state giving me custody of my two boys, but guess what Texas would not enforce it, or honor it.
They tried to arrest me for trying to get my boys.

I actually paid a agency that specializes in things like this to find and bring my boys to me in MO, where my court orders were valid. Basically I had to kidnap my own boys, but I had court orders giving me custody of them.

This is often done esp in other nations where the US court order is not honored in some other nation.

But it appears because you don't have an attorney, they are filing things that you should have merely asked to be dismissed but you are dealing with them.

Aaah I understand now. Sorry to hear of your situation but I'm glad its resolved. Many times I think the courts deal harshly with the father's and their rights but that's another discussion all together. I at one point thought we aught to press charges against them for kidnapping but that's still my stepdaughter's family and a bit harsh.

Well the news is the grandparents and the lawyer didn't show up and the support order was dropped, their order to reinstate wasnt' mentioned at all. But I did tell him what you guys have said about filing for custody. He wonders about filing for visitation if that would be better.

Filing for visitation will NOT be better. That WILL legitimize their custody. His position should be that since he is the legal father, then he should have been giving custody when the mother died. That leaving the child with the grandparents was a violation of law and his rights as a parent.

Check out post #8 in this thread:
https://www.askmehelpdesk.com/family-law/have-sole-custody-2-kids-619965.html

ScottGem & Fr_Chuck thank you so much. You have given more clarity to this situation than I have received since the beginning of this ordeal.