We live in Missouri. The Mother of my son's daughter is in jail and the maternal grandmother will not let him have his daughter. His name is on the birth record and they had lived together for 7 years. The child is 2 1/2 and they have only been split up for 4 months. What legal rights does he have in oour state to have physical custody of his daughter while mother is incarcerated? The local PD will not help him, they stated that lawyers will tell you one thing but they don't know the law.

Your son needs to get a lawyer, go to court, and get custody of his child.

Since his name is on the birth certificate, he has full rights to the child. Being married has nothing to do with it.

Actually the police should have helped since he can merely show the birth certificate. But if they will not, get an emergancy order for custody.

But I would go see the police commander or chief and show them the birth certificate and that this person has refused to give your child to you, this is in effect kid napping since the person with child has no legal rights

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Originally Posted by mad_n_mo

The local PD will not help him, they stated that lawyers will tell you one thing but they don't know the law.

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Hello m:

It's not surprising to ME that cops think they know the law better than lawyers. The fact is, they DON'T. If they did, NOBODY would ever be acquitted..

The grandparents have NO rights to the child, whereas the father DOES. He can do this in one of two ways. Send the grandmother a certifed letter DEMANDING they hand over the child to her father. Give them 72 hours to comply, or you will file kidnapping charges. Send your letter return receipt requested, and send a copy to the Chief of Police, the Mayor, and to the press.

Or, he can just go over there and just pick her up. If the cops won't defend the LEGAL father, they're certainly not going to defend the grandparents... If it's a CIVIL matter, then it is. IT can't be one way when they LIKE they outcome, and another way when they don't.

excon

Agree with the others--but he still needs to get full legal and physical custody established by the courts while the mother is in prison.

If they were living together there was no need for a custody order. Do a husband and wife have custody order on their children, or any couple just living together have a custody order,

I agree with your previous answers, but I'm curious as to the timeline here. When was the mother first arrested? Was she out on bail? Did you son split with her because of the arrest? When was she convicted and incarcerated? What exactly did he do to get custody of the child? Do they live in a small town with a small police dept? This information may have a bearing on the steps your son has to take.

They split because she was abussive to him. She was just arrested this week for DWI, DUI and poss of controlled substance. Also arrested for a DWI week ago and she is on probation for domestic assault, assault and trespassing. Rural County area

First, please do not use the Comments feature for follow-up. Use the Answer options instead. Also when asked for more info please provide all that was asked.

We also need to know what he has done to this point to get the child. Was the mother living with her parents? Did the local family services agency take the child when the mother was arrested or was the child with the grandparent. In other words what, exactly, happened with the child when the mother was arrested?

As I stated she was arrested last week and just 3 days ago. She is still in the local county jail as her bond is set at $5000 cash only. The child was not involved as her Maternal grandmother was babysitting her. He has talked to several lawyers and also obtained a copy of child's birth record so that he had proof that she is his child. He has also contacted law inforcment as advised by 2 of the lawyers he spoke with.Officer told him he cannot do anything about it because they were not married. No the CPS was not involved.

Find a third lawyer or ask the attorney the right question,

Since he is on the birth certificate, unless there were other custody orders though the court he has equal and same rights as the birth mother, not being married has nothing, again nothing to do with it, if he was or was not married, it does not change his legal status with the child.

I know in some rual areas at times attorneys do not want to take cases if there is no money.

I would say first
Police have told him wrong but they don't care since they can't be sued anyway for not helping

The attorneys are either not hearing the correct story ( or we are not) or there are other factors involved.

Well it appears the officer may have been correct. According to this site: Unwed Fathers' Rights in Missouri | eHow.com in Missouri only a court can establish custody in the case of unwed parents.

So your son needs to go to court and petition for custody. Until he does so, he will have no rights to his child.

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Originally Posted by ScottGem

Well it appears the officer may have been correct. According to this site: Unwed Fathers' Rights in Missouri | eHow.com in Missouri only a court can establish custody in the case of unwed parents.

So your son needs to go to court and petition for custody. Until he does so, he will have no rights to his child.

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Actually I don't believe they were correct as it is being stated in this situation. The reason being had the mother had the child and not been away (as in jail) then custody is trumped by the mother. But since there is an absent mother (current custodial parent) and the father is on the birth certificate then the father does have presumptive rights over the grandparent (third party) and the laws verifies it by making the statement of presumption under the law of equal custody (legal and physical).

The father should go to the grandmothers house and request the child. If she refuses then call the police and ask for an incident report and note the grandmothers refusal. Then file exparte for custody and take the report to court along with any other evidence. If the grandmother refuses to co-operate then she can join her daughter under kidnapping charges.

Missouri Child Custody Laws


Complete law section:

Section 452-375 Custody--definitions--factors determini

The Attorneys have all been told the same thing that I have stated on here. I know this for a fact as I am the one who talked to 2 of them on the phone and I also attended the in person consultation with the third one. To sum it up... They were never married but lived together for 7 years,at which time he was the sole financial supporter of their family. Their child is 2 1/2 years old. His name is on the Birth Record and he signed the paternity Affidavit. He left her 4 months ago has had visits with his daughter as allowed by the mother. She was arrested in August for Domestic assault on my son, assault on his brother and trespassing. She is on 2 years supervised probation for these offenses. Last week she was arrested for a DWI after falling down in the middle of a store. They released her after 24 hours as the judge did not get the warrant signed in time to hold her. Then on Tuesday of this week she was arrested for the second time for a DWI and also for a DUI for drugs and for possession of a controlled substance as when the officer had her step from the vehicle there was a loose pill in her seat. She is still incarcerated in the county jail and her bond is set at $5000 cash only.

Then as he should have already done. He should be going to court for custody. Site all the examples and get custody awarded. Didn't any of the lawyers offer to fight for custody for him?

Yes we have an appointment for one of the lawyers on Tuesday. The other one wants an $1800 retainer with 900 to start and then we would have to have the balance within 60 days which I cannot come up with that much at this time all at once. As for taking it in front of a judge, she had to pull her little stunts at christams time when everything is closed for a 3/4 day weekend and cannot get anything filed until Tuesday.

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Originally Posted by mad_n_mo

As for taking it in front of a judge, she had to pull her little stunts at christams time when everything is closed for a 3/4 day weekend and cannot get anything filed until tuesday.

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I hate to say this, but, had your son protected his rights initially, he wouldn't be in this position. When the child was first born, he should have filed for legal custody. When he split 4 months ago, he should have made sure he had legal custody. So, he is in this position because he didn't make sure of his rights previously. Had he done so, the cops would have accompanied him to pick up his child. He also may have been able to file without an attorney previously. Now, its likely the grandparents will fight him so he needs one.

Oh and one more point. YOU have no legal standing here. You can accompany your son to the attorney and to court for support, but HE has to do all the talking, especially in court.

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Originally Posted by califdadof3

Actually I dont believe they were correct as it is being stated in this situation.

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We'll have to see how this plays out. The links you posted refer to Divorce or dissolution of a marriage, which is not the case here. Everything I could find indicates that a court order is need to establish custody. Establishing paternity is not enough. Therefore, until he gets that court order, law enforcement will not help him regain the child. It would appear that possession is 9/10ths of the law here. Had he had custody when the mother was arrested, the grandmother would be in even a worse position and could not have recovered the child.

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Originally Posted by califdadof3

Actually I dont believe they were correct as it is being stated in this situation.

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I agree with Scott.
Signing PA means nothing more than a father has rights to have rights.It does not mean that a father is awarded automatically with shared legal and physical custody .

"Equal rights" mean a father may/ or may not be the child's custodian.

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Originally Posted by mad_n_mo

The local PD will not help him, they stated that lawyers will tell you one thing but they don't know the law.

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Originally Posted by Fr_Chuck

Since his name is on the birth certificate, he has full rights to the child.
Actually the police should have helped since he can merely show the birth certificate.

But I would go see the police commander or chief and show them the birth certificate and that this person has refused to give your child to you, this is in effect kid napping since the person with child has no legal rights

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It is not so easy…
I guess the child has been living with her grandparents for months thus they are “party to the action”


452.375
5. 5) Third-party custody or visitation:
(a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action;


The police’s power is limited to enforcing criminal laws. They don’t enforce every right that may arise under general law, or which may result from a specific court order in a civil case. Police do not enforce civil matters unless they have a specific order to do so .

Police serve in two capacities. When acting as peace officers, they enforce or supervise court orders (such as parenting time orders), and to prevent crimes when they believe one is about to be committed. As officers of the law, police are required to arrest when they see that a crime has probably been committed.

Even if a Court order exists it will be unenforceable if it says “Every other weekend”.It must stipulate as “Every first and third Friday of each month from 6 p.m. until….”