Ask Me Help Desk - Out of state child custody

If child's bio mother was arrested and convicted of felony child neglect and child was removed from her care at time of arrest and given to the bio father in another state, then child was voluntary surrender custody by bio father to me for custody (court heard and signed) can the bio mother now released from prison, petition the court in my state to have the child removed from my custody and sent back to her? I have had this child for 4 years and he is now 5 years old and has disabilities. I am his sole support and we are the only family he knows.
How do I protect him and what steps do I take to allow her to have electronic contact but stop her from attempting to remove the child from me? I am doing this on my own through legal statutes in both states trying to find what to do. If someone can help because I am a breast cancer survivor in the last 4 months and am trying to protect this child at the same time. To remove him would devastate him in every way imaginable. He is getting all the care, love and education etc. with us and has been for all this time. He doesn't know his bio mother.
Would allowing her to Skype and see him once a week be sufficient? I get no child support from neither parent and support him on my own and my husband. I need advice.

As this is a global website, your location will be necessary as laws vary by location.

Also, how are you related to this child?

What state are each of you in? (And can you afford a lawyer?)

What type of custody was granted to you by the courts. Custody can mean many things including guardianship which can be temporary. If the mothers rights were not removed then she has a legal right to the child as well as the father if those reasons exist. Why didn't you ask the courts for child support?

I received temporary custody in the courts in NJ the mother lives in Florida. The bio dad is jobless and homeless and Child protective services was going to remove him and place him in foster care until they contacted me. The gave the court requests for approval of my custody. The child has been with me for almost 4 years and we have had him 4 days or more every week, got him in a pre school, got him evaluated for his disabilities, paid for all his care for all this time as the bio father was not able to care for him in a full time sense. He only knows us as his family and we are in a panic that he would be removed to go to another state. His mental ability is such that to do this would devastate him and he doesn't understand as he is that of a 3 year old. The abuse and neglect that she did to him as an infant, and during pregnancy has left him on the austic spectrum with other difficulties. She is not in a position to care for him and neither is the father. I am not family related, only a close family friend whom has had this child all this time.

Quote:

Originally Posted by Katie1027

can the bio mother now released from prison, petition the court in my state to have the child removed from my custody and sent back to her advice.

Yes, she can.
But have in mind that you have right to ask the Court for investigation and you have right to insist a GAL to be appointed.

5:8-1. Investigation Before Award
If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family and the financial ability of the party to pay alimony or support or both.

In other family actions the court may, if the public interest so requires, order such an investigation.

The court may continue any family action for the purpose of such investigation, but shall not withhold the granting of any temporary relief by way of alimony, support or pendente lite orders pertaining to parenting issues under R. 5:5-4 and R. 5:7-2 where the circumstances require.

Such investigation of the parties shall be conducted by the Family Division of the county of venue, notwithstanding that one of the parties may live in another county, and the Family Division shall file its report with the court no later than 45 days after its receipt of the judgment or order requiring the investigation, unless the court otherwise provides.

Such investigation of the parties shall be conducted by the probation office of the county of the home state of the child, notwithstanding that one of the parties may live in another country or state.

New Jersey case law has developed a four-prong test to be used to evaluate whether a third party has become a psychological parent. The test is as follows;

a. That the biological adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;
b. That the petitioner and the child lived together in the same household;
c. That the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing toward the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and
d. That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, depended relationship parental in nature. V.C. v. M.J.B. 319 N.J. Super. 103 (App. Div. 1999). Once a third party has been deemed to be a psychological parent to a child under the four prong test, then he or she stands in parity with the legal parent. Any custody and visitation issues are then determined on a best interest legal standard. The family court has special power to award custody to a third party. Once a psychological parent relationship is formed then the best interests test is then used. It must be emphasized that a fit parent has a superior right in any custody case.
/ According to Divorcesource /

Quote:

Originally Posted by califdadof3

What type of custody was granted to you by the courts. Custody can mean many things including gaurdianship which can be temporary. If the mothers rights were not removed then she has a legal right to the child as well as the father if those reasons exist. Why didnt you ask the courts for child support?

She is on a 15 year probation for 3 felony counts of child neglect and served 34 months in prison. There are 3 children involved, one of which I have. No child support was requested due to neither parent having the ability to pay. The mother is newly released and is working but also receives state assistance. She has a minimum wage job and the father is not working and hasn't been for almost 2 years now. To ask for support is pointless. The youngest child involved is currently in the state of Florida and is under the custody of the grandmother. She has a host of mental and physical disabilities and the grandmother has obtained permanent custody of this child so she nor the father cannot try to get her back. If the state of Florida will not allow the return of this child, then what are my chances that they will not allow the return of the one I have. I am trying to protect him and do what is in his best interest due to his limitations and his disabilities. The bio mother is not in any capacity to care for a normal child, let alone one with disabilities that require so much involvement. I have the court arbitrator's agreement on the child remaining here with me and no intent on removal to another state regardless. I am under the agreement to allow electronic visit of the bio mother with the child in a few weeks. I am told that if the bio mother wants to fight for custody, the court in Florida could over rule NJ but I am not sure. I am trying to over come a mascectomy at the same time deal with this. I am fine, no treatments necessary, but again, trying to be a honest and loving person who cares about this child and wants to see to his every need that he get the best care and best school so that he can over come as much of his issues as possible. The child has every right to know who the mother is and know of her, that's a given. I would never take that from her and she knows me and has known me for a very long time. She knows my family, she knows all about how the child is with us and has no objection to him being here at this point. She does want him back and is going to try to do this without the complete understanding of Autism and what it means or how these children are. She neglected him to the point that her case made national news (klnda like Casey Anthony made national news but not as big). Giving him back would be equivalent to allowing him back into the neglect his was removed from as the mother has not changed as shown in court. She can have all the documentation she wants, but, upon questioning, the truth and her demeanor came full circle.

Quote:

Originally Posted by Katie1027

I am told that if the bio mother wants to fight for custody, the court in Florida could over rule NJ but I am not sure.

No! The home state is NJ and Fl courts do not have a dog in that fight.

Quote:

Originally Posted by GV70

Yes, she can.
But have in mind that you have right to ask the Court for investigation and you have right to insist a GAL to be appointed.

5:8-1. Investigation Before Award
If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family and the financial ability of the party to pay alimony or support or both.

In other family actions the court may, if the public interest so requires, order such an investigation.

The court may continue any family action for the purpose of such investigation, but shall not withhold the granting of any temporary relief by way of alimony, support or pendente lite orders pertaining to parenting issues under R. 5:5-4 and R. 5:7-2 where the circumstances require.

Such investigation of the parties shall be conducted by the Family Division of the county of venue, notwithstanding that one of the parties may live in another county, and the Family Division shall file its report with the court no later than 45 days after its receipt of the judgment or order requiring the investigation, unless the court otherwise provides.

Such investigation of the parties shall be conducted by the probation office of the county of the home state of the child, notwithstanding that one of the parties may live in another country or state.

New Jersey case law has developed a four-prong test to be used to evaluate whether a third party has become a psychological parent. The test is as follows;

a. That the biological adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;
b. That the petitioner and the child lived together in the same household;
c. That the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing toward the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and
d. That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, depended relationship parental in nature. V.C. v. M.J.B., 319 N.J. Super. 103 (App. Div. 1999). Once a third party has been deemed to be a psychological parent to a child under the four prong test, then he or she stands in parity with the legal parent. Any custody and visitation issues are then determined on a best interest legal standard. The family court has special power to award custody to a third party. Once a psychological parent relationship is formed then the best interests test is then used. It must be emphasized that a fit parent has a superior right in any custody case.
/ According to Divorcesource /

Your answer is exactly what I need to know. Thank you for your answer so very much!

You have to make two steps:
1 You ask the Court you to be recognized as a psychological parent
2.You ask the Court for investigation.

Being recognized as a psychological parent means you have the same rights as the child's parents, thus you are entitled to sole custody.

Quote:

Originally Posted by califdadof3

Custody can mean many things including gaurdianship which can be temporary.

Oh,no!
Custody and Guardianship are two different legal terms./notwithstanding that they have similar meaning/

Quote:

Originally Posted by Katie1027

Your answer is exactly what I need to know. Thank you for your answer so very much!

My pleasure!;)
You are always welcome.

Just my take, the mother can file, but I don't think she stands much of a chance. She will have to prove completely rehabilitation and the capability to be a parent. With the situation you describe, that seems unlikely.

But I think you should be proactive in filing for sole custody.