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  1. #31

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    Quote Originally Posted by MorgansDaddy View Post
    I just wanted to respond to the "make a call" comment because you (OP) know what your daughter needs to do to protect her interest and not cause legal trouble for herself.

    Unless he is in arrears by quite a bit more than you may think, he will not get locked up. I have heard of probation officers demanding someone to work and pay their court ordered support or be violated, but that is RARE.



    Also, first legal trouble he would face if he ever got to that point, would most likely be losing his license.
    He is much in arrears and has already lost his license. He only got motivated to get his last 20 hrs per week job when they were going to put him in jail. He got "laid-off" from his fast food restaurant job last week and up til now has still not gone job hunting, even though he knows of several places that are hiring. This is how much he cares about taking care of his family.

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    Well then, I guess this bum will get locked up if he keeps down his path. That would be a good thing for you daughter as you already know.

  3. #33

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    Quote Originally Posted by BayState View Post
    Don't you think it is not time for your Daughter to DEAL with HER OWN LEGAL issues? She obviously has a Hx of bad choices. As she is now a parent, do you not think she should deal with her own actions? Do you plan on spending the rest of your life "bailing" her out?

    I hope for that daily and have for years and whole heartly agree that it is time for her to DEAL with ALL her own issues, and yes a long history of bad choices. Yes she is a parent now and should be dealing. I can't tell you how much I agree with all you say....when we were growing into adults and as we became adults WE took care of our OWN problems, and I certainly do not want to bail her out the rest of my life, and here comes the BUT....
    But...she has some pyscological issues,and depression etc that hasn't been dealt with enough for her to be completely on her own. We are aiming for that day and counceling has started to show hope, but we are not sure she will ever be totally independent. If you have ever had any depression, you know how parallizing it can be to cope or handle things in life. At this time she is unable to take antidepressants...so individual counceling as well as a group relationships counceling class is where she's at.

    Nothing is a cut and dry and simple as it appears is it? So we have the issue of the boyfriend trying to make her out an unfit mother before the court. Is she the mother I want her to be? No, but she does take care of her child, much better than she takes care of herself. I have never worried that my grandbaby has been neglected by her so as to feel she is in physical or emotional danger.

    So long answer is her becoming independent ASAP, with our help. Hard to turn my back on my grandbaby...who is a doll baby!!

  4. #34
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    Quote Originally Posted by BayState View Post
    Sorry, but no. There is no justifiable reason for placing a child in this turmoil. The father has the legal right to go to court and file a motion for custody and request a RO be placed so that mother can't remove the child from the courts jurisdiction.

    If dad wants the same legal rights to the child then he should ensure he marry before procreating. That is just legal reality.
    I get that mom may ultimately have the edge on custody... but until mom gets an order there is nothing to violate the father for if he takes the child. Under what authority, absent abuse or custodial arrest, would anyone remove the child from the father's custody and hand it over to the mother without a judge saying so first?

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    Quote Originally Posted by 1dreastman View Post
    I don't see how she should have to pay for HIM to see the child. She would be unable at this point to do that.
    She is the one moving and creating the distance. That makes it her responsibility. If she can't afford it then it isn't time to move out of state... or she needs to negotiate a better deal in mediation efforts with dad.

  6. #36
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    Quote Originally Posted by mightymoose View Post
    I get that mom may ultimately have the edge on custody... but until mom gets an order there is nothing to violate the father for if he takes the child. Under what authority, absent abuse or custodial arrest, would anyone remove the child from the father's custody and hand it over to the mother without a judge saying so first?
    Sorry but you're wrong. They are not married and thus no court order would be needed. HE needs a judge to say he has permission NOT her. Him taking the child and refusing to return the child to the mother wouldn't be a whole lot different than if a stranger took the child. When the parents are not married in Virginia, and no custody order is in place, the mother is considered to have sole custody.

    He MIGHT not be arrested for child abduction, which is the only difference from a stranger taking the child. He would have to return the child to the mother, however.

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    Again- I get it... that is the position the court will take once the matter gets there, but there does not seem to be anything (at least I have not found it yet) in the law that the father would be violating if he did in fact take the child. Absent a court order nobody would have any authority to remove the child from the father's custody and give it back to the mother unless there was abuse or some other crime in question.
    The father taking the child is way different than a stranger doing so- the primary difference being the intent and the likely use of force.... as well as the fact that nobody seems to dispute that he is in fact the father.

    I have not found anything yet, but perhaps those of you who are more familiar with VA law can point me towards something in state statutes that says the father can not take his child from the home that they live in together and go to another location without asking mom's permission.

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    Nothing to add - we're going in circles, unfortunately.
    Last edited by Proserpina; 07-04-2011 at 01:24 AM.

  9. #39
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    Paternity. In the classic paternity case, the mother petitions for proof of an unmarried father's paternity of her child in order to obtain an enforceable right to child support. An order of paternity, however, does not carry with it any recognition of the father's right to regular access or shared custody of the child as a matter of law. In order to obtain a secure right to maintain a regular relationship with his child, the father must obtain a separate order for visitation or custody from a Juvenile and Domestic Relations Court judge.
    http://www.cravensnoll.com/Family-La...-Support.shtml

    The father has to assert his rights in Virginia by petitioning for custody and/or visitation.

    VA code doesn't specifically say that, but states what a father must do to get custody and/or visitation, or basically, assert his rights.
    Last edited by MorgansDaddy; 07-04-2011 at 01:48 AM.

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    Thanks for posting that, MD.

    I truly do understand where you're coming from, Moose. But truly - in Virginia, an unwed father has NO RIGHT to take the child without Mom's permission unless there is a court order.

    I realize that this is the reverse of many states - but this is VA.

    MD does know of what he speaks.

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  13. #41
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    Quote Originally Posted by MorgansDaddy View Post
    http://www.cravensnoll.com/Family-La...-Support.shtml

    The father has to assert his rights in Virginia by petitioning for custody and/or visitation.

    VA code doesn't specifically say that, but states what a father must do to get custody and/or visitation, or basically, assert his rights.
    Well again, paternity is not in question in this case- it is established. The quote provided here seems to be addressing situations where paternity is in question, and also situations in which the parents are not already living together and sharing the child as was described by the OP. If paternity was in question, or if the parents were already living seperately and the father did not already have free access to the child, then I agree he would most certainly need to petition the court because nothing is established. That is not the case here though.

    In a case such as this where the father already lives in the same home as the child and has free access to the child it would be very difficult to find him in violation of anything at all for doing anything that the mother might do with the child. Yes, once it reaches the court custody may likely be given to mom and father's access restricted or defined, but until then there appears to be absolutely nothing in the state law, other than a court order, to limit what the father may do with the child.

    Perhaps I am looking in the wrong place, but I am flipping through Title 20. It addresses how parentage is determined, but there is nothing at all in the code that says mom automatically has custody and dad is out of luck. That may very well be what happens in practice (especially in cases where the parents are not already sharing the same home with the child), but not until the parents get to court. There appears to be no penalty whatsoever for dad doing what you are saying he can not do which means it is not illegal for him to do it. So long as he doesn't cross a line toward parental abduction or child concealment, or whatever the relevant VA statutes are for that matter, it really does appear he can do what he wants with his kid until a court tells him otherwise. Of course, the same is true for mom.

    I'm not trying to be argumentative over this- just looking for a clear statute that addresses this because I hear it said quite a bit, although in most cases the parents are not living together which makes it far easier to support. We can say that mom has custody and all the rights to the child because we know from experience that is how the court is likely to go with it whenever the parents get that far, but absent a statute or court order to support the statement it really means nothing. An emergency custody order is only a phone call away, but still, until it is obtained there is nothing for anyone to enforce and no authority to remove the child from one parent and hand it over to the other.

  14. #42

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    Quote Originally Posted by mightymoose View Post
    Well again, paternity is not in question in this case- it is established. The quote provided here seems to be addressing situations where paternity is in question, and also situations in which the parents are not already living together and sharing the child as was described by the OP. If paternity was in question, or if the parents were already living seperately and the father did not already have free access to the child, then I agree he would most certainly need to petition the court because nothing is established. That is not the case here though.

    In a case such as this where the father already lives in the same home as the child and has free access to the child it would be very difficult to find him in violation of anything at all for doing anything that the mother might do with the child. Yes, once it reaches the court custody may likely be given to mom and father's access restricted or defined, but until then there appears to be absolutely nothing in the state law, other than a court order, to limit what the father may do with the child.

    Perhaps I am looking in the wrong place, but I am flipping through Title 20. It addresses how parentage is determined, but there is nothing at all in the code that says mom automatically has custody and dad is out of luck. That may very well be what happens in practice (especially in cases where the parents are not already sharing the same home with the child), but not until the parents get to court. There appears to be no penalty whatsoever for dad doing what you are saying he can not do which means it is not illegal for him to do it. So long as he doesn't cross a line toward parental abduction or child concealment, or whatever the relevant VA statutes are for that matter, it really does appear he can do what he wants with his kid until a court tells him otherwise. Of course, the same is true for mom.

    I'm not trying to be argumentative over this- just looking for a clear statute that addresses this because I hear it said quite a bit, although in most cases the parents are not living together which makes it far easier to support. We can say that mom has custody and all the rights to the child because we know from experience that is how the court is likely to go with it whenever the parents get that far, but absent a statute or court order to support the statement it really means nothing. An emergency custody order is only a phone call away, but still, until it is obtained there is nothing for anyone to enforce and no authority to remove the child from one parent and hand it over to the other.

    Thanks again everyone for all your knowledge and research. As I said before, it sounds as if even what the law regarding custody in VA is not cut and dry. So it sounds like the best thing is for her to petition the court for custody as she is leaving their joint home and after things die down from her leaving him, and since she isn't planning on leaving the state for approximately 6 months, petition the court then for permission to leave the state.
    Thanks All!

  15. #43
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    Your making a good point Moose. That section is interpreted in VA to mean that the father has to file to assert his rights and spells out how he goes about doing it and his rights in the process. So, no, he really wouldn't be violating anything that would result in criminal charges.

    VA law on this matter is about like a lot of laws, it is worded with very general language that could be interpreted in different ways by different people.

    When my daughter was born, we were told my name on the BC didn't mean a whole lot, and if we were to separate, I wouldn't have any rights until a court order spelled them out. I thought that was ridiculous and the person who told me that crazy. That was, until the court told me basically the same thing when I called and asked, and told me if that was my situation, they couldn't give me any real advice and to speak to an attorney. Of course that wasn't an issue for me and we are married, about to celebrate our fourth anniversary next month.

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    Yes, I understand the reasoning for the general language as it is impossible to have a statute to address every given situation.
    That same general language is what allows the father to do what he wants with his kid though... until told otherwise by the court.

    In fact, Title 20 does not even address custody other than the procedure for determining it. If there is something else relevant in the state codes I haven't found it yet. Title 20 seems to be the most relevant area in the state law, and since it does not address custody, or the presumption of custody, then that just reinforces the point that the parents need to get in to court because neither of them have a higher level of custodial rights over the other without a custody order. What I would really like to find is something in the state codes that establishes that the mother is presumed to have sole custody when not married. I have been looking for the same for my own state but haven't found it, although I find many references to "doctrine"... but doctrime still means nothing intil implemented by a court.

    In fact- 20-124.2:
    B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.

    That section does not differentiate between wed or unwed parents- it only refers to parents. 20-49.1 addresses how parents are determined- the mother by giving birth and the father by a number of ways... one of which is a written statement by mother and father under oath that he is the father. To my understanding, VA accepts the signatures on the official birth certificate as satisfying this requirement, and the father is further established under 20-49.4 since the parents live together, if the child has his last name, and if he has ever claimed the child for tax purposes. If there is no question, as in this case, that he is the father, then according to Title 20 the father appears to have the same rights toward the child as the mother until a court intervenes and says otherwise.

    If they lived apart from each other and dad had to climb through a window in the middle of the night to access the child, ok, clearly there is a problem that needs to be addressed and dad's resulting arrest would allow the child to be returned. If they live apart from each other and mom lets dad take the child for the afternoon but dad doesn't return the child... without a custody/visitation order to enforce, I don't see any authority for anyone to remove the child from dad's custody until a judge orders it. Again, that could only be a phone call away, but could depend upon the circumstances as well- such as dad keeping the child because he has cause to believe mom is about to permanently leave the state with the child. In such a case I would expect the court would still provide that the child be returned to mom, but also order her not to leave the state, and then the matter is before the court to be addressed and a custody/visitation order would result.

    Anyway- my whole point is that everyone always jumps on mom's side because we all know how the courts tend to eventually rule in these matters, but until one of the parents brings the matter to the court to be heard none of it means anything unless it is established in state statutes that can be enforced by police, social services, or other agencies.

    I've just done a quick search and although I find lots of talk about mom having presumed sole custody if unmarried, I can't find a single state statute (for any state) that affirms this. To me, that means that it is not presumed until the court says so case by case, otherwise it would be in statute.
    Last edited by mightymoose; 07-04-2011 at 04:14 PM.

  17. #45
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    This is very simple.

    Custody is immediately vested in an unwed mother by virtue of giving birth.

    The presumptive father must, in every jurisdiction, do two things to secure proper paternal rights.


    He must first establish paternity.

    That can be done in two ways, by formally acknowledging paternity (usually signing a birth document) or via DNA testing.

    If the father does not then go to court, he has no custodial rights.

    The other side of that coin is a married couple. His name is Fred. Her name is Sue. Sue has an affair with Leroy. She gets preggers with Leroy's child and bears a son.

    Leroy is not the legal father. Poor Fred is the legal father with full custodial rights with Sue.



    I could bore you with the whys and wherefores, but why bother? Poor Fred is on the hook for life, because Sue was "catting" around with Leroy.

    It doesn't need toake sense to be the law. It, nevertheless, is the law. Unwed fathers have no rights, unless and until they receive them by court order.

    Unwed mothers are vested with full custodial rights. It is the law in every state with little deviation!!!
    Last edited by army judge; 07-04-2011 at 05:41 PM.

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