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Thread: Custody, Legal Services and POA

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    Help Custody, Legal Services and POA

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    We are going to be talking with hub's recruiter this coming tuesday more in depth about this, but in the meantime, I thought I would pick your brains.

    This is our situation. My stepson, who I consider my own and I have raised since before he turned 2 (he'll be 9 in Sept) has lived full time with my dh since he was 1. Dh was never married to his mother and they pretty much did a shared custody arrangement (outside the courts) where ds was with his father most of the time. Shortly after he turned 1, hubby got a call from CPS that ds and his older brother (not my dh;s) had been taken from thier mother. She had taken the older into ER with a broken leg, it was a spiral fracture and it later came out that she had kicked him in anger and broken his leg herself. The cps granted dh permission to keep ds while the investigation was open and also while the mother was going through counseling. She was eventually granted supervised visitation in dh's home. After all requirements were met, her parental rights were given back to her, but he stayed with my dh and has been with him ever since. We unfortunately do not have copies of all the paperwork that went through the courts, so we do not have a final order stating who he was permanently to reside with. We are going tuesday to the court to get that information.

    Anyhow, she went through periods of unemployment and homelessness, and there were looooong periods of time where she did not call us or see my ds. She has seen him maybe 5 times since hubby and i were married in 2005. For 1.5 of those years we all lived in the same apt complex and she still only saw him twice.

    Hubby is in enlistment process and we are trying to figure out what are options are as far as legally being available to take him with us. He was informed by a co-worker who is former Army that if he has had him for 7 years, he has physical custody and therefore when he signs over POA to me, she cannot come and take him from me while hubby is away for training. He was also told that through Legal Services, once he is in AIT, they can act on his behalf and negotiate permanent custody for him AND file any needed legal documents so that we can take him with us out of state when we get our orders.

    I don't imagine anyone here has been through an identical situation, but if anyone has any information they may be able to share regarding the info we have been given, it would be greatly appreciated!

    We have set up an appointment this coming Weds with the legal aid society in our county to get advice and possibly representation, although we are really trying to avoid going to court because this would put a major delay on hubbys ability to go off to training and such. We are low-income right now, and we really need to move forward so that we can give our kids a better life.

    Hubby and I both are extrememly stressed and worried about this whole situation and it has consumed our every thought for the past week since we spoke to the mother and she stated that she did not want him taken out of state. HELP!!!
  2. Feelin' fly like a Cheesestick
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    Every state is different, but in WA, my exhusband had the option of contesting our move out of state. If we couldn't agree, it would have been up to the court to decide what was in the best interest of the children. She can contest it as long as her parental rights aren't completely terminated (which it sounds like they aren't)... but I'm not sure what the process in your state is. Given her history, I hope that a court will decide that it's best for DS to remain in your home as it's healthy and stable (even though you're moving... the family is still stable).

    Hopefully legal aid will be able to help you more and tell you how things work in your state specifically... there's always a chance she'll say she's going to contest it but really won't in the end. That's kinda how things happened with my ex. He kinda threatened it but he didn't contest it in the end, thankfully.

    I wish you guys the best of luck!
    Beth, Mama to Emmalee (12), Evan (9), and Ella (4 on May 7) (I really REALLY need to update my picture!)
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    I don't think legal can work on his behalf if he's gone to AIT, he has to do the foot work and if needed, if they call for him to appear, he'll have to appear, not the legal aid worker. Mostly Legal can give advice and help with paperwork, but thats it. Mostly its a civilian/family court issue, and its probably best to have it ALL worked out before he goes into AIT because then I don't think it will help him careerwise nor will they be lenient to let him out for that, unless he wants to be held behind and wait until the next class classes up, he can go then, but he'll be behind. I have know two other ladies in similar circumstances, and they were able to take the custodial issue kids out of state only by hiring a lawyer that handles custody issues for military (civilian lawyer) and doing it through family court. And yeah, I believe both ladies say the birth mothers are no longer in the kids' lives since they don't have custody of the kids.
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    Thanks ladies! It helps a lot just to know I am not the first stepmomma to go through this kind of a situation. I can't wait to look over the papers hubby brings home from court clerk tomorrow. I am praying praying there are some kind of custody orders in there stating he has custody. If thats the case, we wont have to do anything (I think) other than alert her we are taking him out of state. Then if she wants to stop it she will have to file of her own accord against us. When push comes to shove, i don't think she will act unless we take her to court first. I think she is just blowing smoke thinkiing she will scare us into not taking him.

    I will keep you all updated!
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    Good luck! i hope things go in you guys favor!
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    Thanks a lot, me too! I have LOTS of folks praying over the situation so it will definitely be interesting to see how God chooses to act. Can't wait for hubby to get home around 5 to tell me what he found out at the courthouse by looking at the court records.
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    First, breathe and destress...you guys are actually in a better position than most.

    Good for taking the first step to get the paperwork/Court order to determine exactly what was ordered by the court.

    Next, basically, this is a child custody issue. You both are in a good position because you have "status quo" in your favor (child is physically residing with you), not only that, the child has been in father's physical custody, and de facto legal custody, for the last five years. The court, in making custody determinations, always judges on a "best interests of the child" standard. One of the things they look at is continuity; where has the child been for the majority of his life, or who/what environment does he have the most connection with? It is not necessarily the most recent situation, but courts have a tendency to weigh more heavily the prior few years of residence versus living situation that was remote in time.

    Of course, the bio mom's history w/ CPS and non involvement in the child's life is going to weigh heavily as well.

    I don't know how much legal aid/JAG of what not will help, but I do know that every court generally has a family law clerk/self help area that will assist you in filling out forms, and in navigating the process. Take a look at that paperwork to find out if a custody order was made giving custody (physical and legal), to Dad. If not, or if it says can't take child out of state w/o bio mom permission, go to the court and institute a petition for custody/parenting plan, or petition for modification if there was no court order made.

    I always recommend getting an attorney...I know a lot of people balk at the idea of putting $2500-$5000 as a retainer for an attorney, and it can be cost prohibitive, but in the long run generally completely worth it. Your attorney can navigate the system for you, knows what forms/procedures need to be completed, and this allows you to live your life while everything is pending.

    Honestly, even moreso in your case, I would get an attorney to streamline this and get it done before bio mom can wreak too much havoc, because there is a really really really good case for sole custody (or primary physical/legal, with limited parenting time for her...which would still allow you to move...).

    The usual disclaimer: I am attorney, but am only licensed to practice in Washington and Oregon. Each jurisdiction varies, and my best advice is always to contact an attorney licensed in your jurisdiction. If you contact your state's bar association, most have an attorney referral network, and many have a program linking attorneys willing to offer discounted programs to military. Nothing stated above should be considered legal advice, and also does not establish an attorney client relationship.
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    Quote Originally Posted by armylawyerwife View Post
    First, breathe and destress...you guys are actually in a better position than most.
    That's very encouraging!

    Quote Originally Posted by armylawyerwife View Post
    Next, basically, this is a child custody issue. You both are in a good position because you have "status quo" in your favor (child is physically residing with you), not only that, the child has been in father's physical custody, and de facto legal custody, for the last five years. The court, in making custody determinations, always judges on a "best interests of the child" standard. One of the things they look at is continuity; where has the child been for the majority of his life, or who/what environment does he have the most connection with? It is not necessarily the most recent situation, but courts have a tendency to weigh more heavily the prior few years of residence versus living situation that was remote in time.
    This is precisely what I have been reading and I was hoping this was going to give us a major advantage. I can't possibly see HOW the courts would even consider not letting us take him and instead leave him with her, considering her history of non-involvement and the fact that she has been through the system twice for investigations into child abuse/neglect and had her parental rights temporarily revoked both times.

    Quote Originally Posted by armylawyerwife View Post
    Take a look at that paperwork to find out if a custody order was made giving custody (physical and legal), to Dad. If not, or if it says can't take child out of state w/o bio mom permission, go to the court and institute a petition for custody/parenting plan, or petition for modification if there was no court order made.
    I am pretty sure that IF there is any kind of provision for custody or a custody order, the issue of moving the child out of state is NOT addressed at all. I am wondering if there is no order, which is possible, if we need to do anything at all prior to taking him out of state other than maybe sending her a letter via certified mail? That would give her the opportunity to contest the move and enable us to show that we did in fact contact her ahead of time to give her that opportunity. I don't think, when it comes down to it, she will take anything to court herself. I believe she will only hire a lawyer and fight if we start proceedings.

    As far as petitioning for a modification, could you please explain? How can you go about modifying a non-existent order?

    Quote Originally Posted by armylawyerwife View Post
    I always recommend getting an attorney...I know a lot of people balk at the idea of putting $2500-$5000 as a retainer for an attorney, and it can be cost prohibitive, but in the long run generally completely worth it.
    We unfortunately have no money, credit or savings to pay any kind of a retainer, which is why we set an appointment with the Legal Aid Society in our area. We are hoping this will enable us to take care of whatever we need to in a timely manner. I know we financially qualify for this service.

    Quote Originally Posted by armylawyerwife View Post
    Honestly, even moreso in your case, I would get an attorney to streamline this and get it done before bio mom can wreak too much havoc, because there is a really really really good case for sole custody (or primary physical/legal, with limited parenting time for her...which would still allow you to move...).
    It means alot to me to hear from an actual lawyer that we seem to have a very strong case and seem to have a good chance of winning this. My hubby is so distraught, and we have decided that unless we can take ds with us, we are not going anywhere. This really pains me as we would be giving up the opportunity for a much better life. Not to mention hubby is finally getting the opportunity to do something he has wanted to since he was 17 yrs old!

    Thank you so very much for taking the time to share this information with me, you have no idea how much you have lifted my spirits and I will be sharing what you've written with my hubby!
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    #9
    I have a very very good update to share on our situation. After hubby went to courts, we now have documents in our possession that state has court ordered physical custody to hubby, with a visitation agreement according to state guidelines.. The second document is a support order. This support order gives us leverage in our circumstances, as it has never been paid. We are still meeting with the lawyer tomorrow to get info on whether or not we need to file and additional paperwork to cover our move out of state when the time comes, but this means hubby can move ahead with basic and ait without the fear that she is going to show up on our doorstep with the cops to take ds away while he is gone.

    Yay hurrah!!!
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    I am very happy to hear that. As for moving out of state, if the order is silent, and there is a visitation schedule in place, you are probably safe if the provisions of the visitation schedule would allow for the move (i.e. summer vacations, alternating christmases, etc.)...if, on the other hand, it's every other weekend, for example, you would probably have to get the modification, which would not likely be too difficult considering she hasn't implemented her visitation rights.

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