[FilzGirl]

I'm an unmarried father of a 6 y/o little boy. My ex and I were together for 7 years before she left me for another man. She took my son in the middle of the night out of our home we established together. The last time I saw my son was on Easter. I didn't hear from my ex for 6 months. The only way I had to contact her was through e-mail and I sent several daily to try to get in contact with my son. They all went unanswered. I filed a petition and summons her to court. It was very hard to track her down because she moved to 3 different address in that time. The first summons went undelivered. She was finally located and served on Sept 9th and upon receiving the summons she moved to NC.
Can the court order her to come back to FL?
If I get my son in my possession can I legally keep him until our case management conference Nov 6th?
Is there a form I can file to order her to bring my son to our case management so I can see him?

[cadillac59]

I'm an attorney in California and a Certified Family Law Specialist. I devote 100% of my practice to family law.

Now, you should check out anything I say with a family law attorney in FL (where I assume you live) because your procedures are likely different and the substantive law may also be somewhat different. However, on the subject of child custody jurisdiction (which is possibly an issue in your case) the law is uniform throughout the country (there are only 3 states which may still have slightly different law on the subject but FL is not one of them). The operative statute governing child custody jurisdiction is the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act).

If you filed your action when the child was still residing in FL or within 6 months of the departure from FL of your child then FL has jurisdiction to hear the case and yes, you can make your "ex" come to FL to litigate (I don't know if your ex lived in FL the entire time after breaking up with you and before her moving to NC after being served). The court cannot order her to live in FL but yes she may have to return to have the issue of custody decided. IF more than 6 months passed from the time the child left the state and the date you filed the case you might be in trouble and jurisdiction may be appropriate where the child and mother presently reside (that does not seem to be the issue here, but you should clarify).

In CA I would have recommened you get an emergency order granting you sole custody (an ex parte order for custody) because the mother is a flight risk and has denied access to the child, in addition to possibly hiding the child from you, which could amount to the crime of parental kidnapping. If you got such a temporary order then yes you could keep the child for a long as the order specified. The court can also make orders that the child be brought to the state at the time of a hearing, yes. This is typically ordered in cases like yours to allow for immediate visitation or custody change at a hearing.

I think you should see about applying for an emergency order granting you immediatel sole custody of the child on the basis that the mom is a flight risk and has denied access. I'd give that a try myself.


Hope this helps.

[cadillac59]

One other thing I wanted to add. In California whenever a divorce or parentage action is filed certain automatic temporary restraining orders go into effect upon filing of the action (we call them "ATRO's"). In divorces they effect property and insurance rights but in all cases they provide that neither party may remove the parties' children from the state without the written permission of the other parent or a court order.
Had yours been a CA case, your ex would have violated the ATROs by moving with the child to NC after being served the summons and petition. This would have been punishable as a contempt of court and criminally as a felony/misdemeanor (one or the other depending on the facts). But, most importantly for you, taking the child from the state would be a basis for you to go to court for an immediate (ex parte) order giving you immediate sole custody of the child pending a further hearing on the matter. And you would get it (about a 99% chance in my opinion). Ex parte orders are available with litte (say 24 hours) or not notice to the other side and you don't have to wait for a court date- you can get them Monday through Friday. If you got the order giving you custody you could turn it over the DA's child abduction unit and they would find the child for you, contact law enforement in the other state and arrange for you to go and get your son-- all this with your ex kicking and screaming about it.

I believe in being fairly aggressive in cases like yours. Don't let the mom horse you around like she's been doing. She's got the idea that because she's female she's got all the rights and you are nothing but a sperm donor. That's not the way it works anymore. The old days wherein the mom always got custody of the kids unless she was a heroin-addicted prostitute are long gone.

Go get some help with this and see if FL has anything like our ATRO's. Good luck.

[cdad]

Only thing Id like to ask is did you sign the birth certificate or do you know if your name is on it ?

[FilzGirl]

I'm on the birth certificate and I've also filed with the Putative Father Registry

[cadillac59]

I'm on the birth certificate and I've also filed with the Putative Father Registry

You are already one step ahead of the game.

Like I said, if you want you might try to get temporary custody now, before your upcoming hearing.

[FilzGirl]

I've Filed a Motion for Temporary Custody. We're set up for a case management conference Nov 6th, will they address it there? My ex said she will no be bring my son, I was hoping she had to so I could see him but she said he will be leaving him in NC

[cadillac59]

It depends on what the court typically sets the CMC for. It is just a time to review the case with the parties, or can the judge make orders at the hearing? It is the time when the hearing on your motion is decided or is that set for a different date? These are procedural matters that vary from state to state so you need to ask these questions of someone familiar with your state and county practice. If the court can make orders at the hearing and the child is left behind in NC, then the judge could still award you custody- say that mom has to turn the child over to you in a week. If she violates the order then you can go get your son with the help of law enforcement. There's a lot you can do.