my wife left me with our two kids about a year and a half ago, we were supposed to move from *** to *** together, but our marriage fell apart on moving day. So I have had our daughter and son, while she has been doing her thing. now she wants to come to *** and take our son, not mentioning our daughter at all, back to *** with her. I am scared I won't get him back, I am scared for his well being since she has a history of being a partier and being unstable.what should my first steps be in making sure that i don't lose my children, and ultimately having legal sole custody of my children?
2 Answers from Attorneys
Hello. You should seek private attorney assistance at this time. You will discuss your issues and needs in great detail. You may phone me as to forming arrangements for attorney assistance at this time. As appropriate, you may always phone police to request a welfare check. As appropriate, you may always phone child welfare. Your attorney will help you.
Tricia Dwyer Esq
Tricia Dwyer Esq & Assoc PLLC
PRE DIVORCE PLANNING
POST DIVORCE LAW
CHILD CUSTODY & PARENTING TIME LAW
PARENTING TIME EXPEDITOR
FAMILY LAW MEDIATOR
I am afraid that where there is no court order and the children were born during a marriage, each parent has the right to care for the children. Without an agreement, it creates a difficult tug of war with the children in the middle.
Ultimately, you must commence a divorce, legal separation or custody action to have a court determine the respective rights of the parents. You may be able to mediate a resolution and have that agreement memorialized as part of a court order in the process.
In any case for an original determination of custody, the court makes its ruling based on a "best interests of the child" standard. A court can makes its determination based on any facts that affect the well being of the child in addition to 13 factors set forth in Minnesota Statutes. How arguments are framed in conjunction with the statute may be critical to the outcome.
The statutory factors are, as follows:
1. the wishes of the child's parent or parents as to custody;
2. the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
3. the child's primary caretaker;
4. the intimacy of the relationship between each parent and the child;
5. the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
6. the child's adjustment to home, school, and community;
7. the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8. the permanence, as a family unit, of the existing or proposed custodial home;
9. the mental and physical health of all individuals involved; except that a disability, as defined in section 363.01, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;
10. the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
11. the child's cultural background;
12. the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
13. except in cases in which a finding of domestic abuse as defined in section 518B.01 has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
You should retain experienced counsel.
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