Father trying to get temporary custody pre-divorce

[ELJW11709]

Ok, a here is a basic layout of my situation. The mother lives in Ohio, and I live in Indiana. My son was born in november of 09 and I filed for divorce and temp. custody about a month ago. The court date is within a week and I guess I am just trying to mentally and emotionally prepare myself for what i can expect to hear. The temp custody and initial divorce will take place here in my hometown. There has been no DNA test done to provide proof that i am in fact the childs father, but i am assuming that will take place during the temp custody hearing. The divorce portion of the matter doesnt really concern me as much as the custody portion. So far, the mother has been completely unreasonable in visitation. She refuses to allow the child to come here with me for even part of a day, and a 2 hour drive every day to see him in ohio is not within my financial boundaries.

There are the facts. Now, my questions are these. What can I expect when the court date comes in the matter of custody? I have doubts that the mother will show up to the court date, how would her absence affect the situation?

Thank you for your help.

 

[Proserpina]

How long has Mom been in Ohio?

Why do you believe you should have custody?

(for what it's worth, you are the child's legal father regardless of biology at this point)

 

[ELJW11709]

I think he would be in a more stable living environment here. I'm not implying that she is a bad mother by any means, but the home she lives in doesn't seem like a good environment to raise a child. Financially, I am far more fit however. I know that doesn't mean all to much in a court room, but it still seems like a contributing factor.

 

[ELJW11709]

Sorry, did not see the first part, but the mother moved back there about 5-6 months ago. And, how am i the legal parent if no actual paternity test has been taken? keep in mind i have not signed any birth certificate or any thing of that sort, but she did put me down as the father at the hospital

 

[Proserpina]

Sorry, did not see the first part, but the mother moved back there about 5-6 months ago. And, how am i the legal parent if no actual paternity test has been taken? keep in mind i have not signed any birth certificate or any thing of that sort, but she did put me down as the father at the hospital

You may find that Ohio has jurisdiction - you're meant to file where the child resides (it may honestly come down to whether it has actually been 5 or 6 months since your wife left).

You are the legal father because the child was born during your marriage.

Now I understand that you feel that you're more stable - but Mom has had your son since he was born. At this stage you really need to show a change in circumstance (the child's - not yours) in order to justify custody, or that Mom is unfit.

(And you'll have trouble doing the latter because you've allowed him to remain with her since his birth)

 

[ELJW11709]

I really haven't had any say so in the matter of where he resides. She has completely refused to allow me to see him outside of her home.

 

[ELJW11709]

Also, I was under the assumption that, unless contested, the custody would take place wherever it was filed. Granted, if contested it would most certainly go to Ohio, but I honestly don't think she would contest it simply because she wouldn't know to do so.

 

[Proserpina]

You may still find that the case is dismissed because of jurisdictional issues - just be aware of the possibility, ok?

Assuming that Mom has been properly served, if she doesn't attend the hearing (and assuming the hearing will go ahead) there is a fair chance that you will be granted temporary custody. What you need to bear in mind though, is that the child has been with his mother for the past three months - you really need to think about what you're going to do if you are granted custody, as simply going there and taking him from Mom is not going to be good for him.

 

[Proserpina]

There is also the possibility that the hearing will be continued until Mom CAN make it...

 

[gladwell]

If you were married then the child is considered yours until proven otherwise. If you two lived in the state that filed the petition prior to her leaving to Ohio, then your state has jurisdiction. You were smart to file first.
Right now it is looked at as if she is merely on vacation with your son. People go to other states to visit relatives and then they come back regardless of her intentions.
She will be in violation of a court order and that will be in your best interest because it shows how emotionally unstable she is and that she is trying to keep you away from your child. You could later use that as an argument for full custody.
Take it one step at a time. Go to the hearing and file your motions after that. She will most likely be ordered to give you parenting time at the hearing. Be prepared to figure out a parenting time that you can follow. Take into consideration your work schedule and such.

 

[Proserpina]

If you were married then the child is considered yours until proven otherwise. If you two lived in the state that filed the petition prior to her leaving to Ohio, then your state has jurisdiction. You were smart to file first.

Not necessarily. Mom moved out before having the child, remember?

Right now it is looked at as if she is merely on vacation with your son. People go to other states to visit relatives and then they come back regardless of her intentions.

where are you getting that?! Mom moved BEFORE she gave birth....she has been gone for 6 months. No court will consider that to be on vacation.

She will be in violation of a court order and that will be in your best interest because it shows how emotionally unstable she is and that she is trying to keep you away from your child. You could later use that as an argument for full custody.

Except there is no court order. She is not in violation of anything.

Take it one step at a time. Go to the hearing and file your motions after that. She will most likely be ordered to give you parenting time at the hearing. Be prepared to figure out a parenting time that you can follow. Take into consideration your work schedule and such.

This part I'll agree with.

 

[gladwell]

I did see that the mother moved out before the child was born. That is irrelevant. Was the mother married to you before the child was born? Likewise have you ever heard of men that paid child support on children that weren't theirs just because they were married to a woman and she had an affair?
She was served papers ( I am assuming correctly) for a Temporary Custody Hearing, that is a court order. She has been ordered to appear in court on a specific date signed by a judge. Judges don't just do that stuff for the fun of it.
Just by virtue of marriage and it doesn't matter if the mother moved to another country and had the baby. The baby is considered yours until proven otherwise.
Think about this for a minute. Let's say your wife has family in another country and she goes to visit. Upon her visit she gets sick and is hospitilized making her bed ridden for the remainder of her pregnancy. She then has the baby in that country. Are you thinking you are no longer the father of that baby?

 

[Proserpina]

I did see that the mother moved out before the child was born. That is irrelevant.

No, it is NOT irrelevant. You are reading things that have NOT been stated.

Was the mother married to you before the child was born? Likewise have you ever heard of men that paid child support on children that weren't theirs just because they were married to a woman and she had an affair?

The law presumes that the husband is the legal father of ANY child born during the marriage regardless of biology. If the husband wishes to, he may disestablish paternity as part of the divorce proceedings.

And yes, of course, there are men paying child support for children who are not biologically related to them. Because they are still the LEGAL parent.

She was served papers ( I am assuming correctly) for a Temporary Custody Hearing, that is a court order. She has been ordered to appear in court on a specific date signed by a judge. Judges don't just do that stuff for the fun of it.

A hearing is NOT a court order. Being served with papers does NOT mean that those papers are a court order. Mom will NOT be in contempt if she doesn't attend the hearing.

You need to understand the difference between receiving a summons and not attending, and actually being held in contempt for not obeying a court order.

Just by virtue of marriage and it doesn't matter if the mother moved to another country and had the baby. The baby is considered yours until proven otherwise.

You are wrong. It DOES matter if Mom moved and had the baby elsewhere because this can change jurisdiction and change the entire picture.

Think about this for a minute. Let's say your wife has family in another country and she goes to visit. Upon her visit she gets sick and is hospitilized making her bed ridden for the remainder of her pregnancy. She then has the baby in that country. Are you thinking you are no longer the father of that baby?

I have NO idea where you're going with this?

It is already established that the OP is the legal father of this child, whether or not he is biologically related to this child.

And it is already established that Mom is NOT subject to any court order, because there does not exist any court order. Sure, there is a summons to appear - but this is NOT the same thing.