Legal Question in Family Law in North Carolina

Child custody case dismissed and moved to another state

After divorce, child is kept by father with no custody papers. Several reports to child welfare of fathers neglect,father takes him to brothers home 2000 miles away and leaves him. 2 years pass, mother goes..retrieves the child and brings him home..files for custody in her state.... when served, father gives parental rights to brother and he fights to have child brought back to his state for custody...the state in which mother and father live dismisses case and orders child back to brother even though Temp custody had been given to mother. Mother is gay and thought that the longer the father left the child with his brother,the easier case would be to win. Question...how can the state send him back....when the mother has papers granting her temp custody. Please help if you have any suggestions..the mother says she will go to state to fight which is 2000 miles away.....he has been ordered to be returned on the 24th....thanks

Asked on 7/19/00, 10:50 am

1 Answer from Attorneys

Phroska L. McAlister PHROSKA LEAKE McALISTER
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Re: Child custody case dismissed and moved to another state

A child's presence or residence in most states for at least six months, provides for the "six months residential state," to have jurisdication over the child; and further deprives another state, ie., a child's birth state, state of parties' marriage or divorce, of jurisdiction for the same reason. To wit: the child must be residing or domiciled in the state from which a party is requesting custody of a child for at least 6 months, or for such other specified period.

Temporary custody from a state that does not have jurisdiction over the child or custody matters, means that permanent custody to the mother is unlikely to be granted or recognized by a court of proper jurisdiction.

Temporary custody Orders are usually granted in

"emergency" situations and should not in this case be construed as the Court having determined that jurisdiction over the child exists.

Mother should go to state court that has jurisdiction over the child. As between a parent and non parent Mother should prevail over the ex brother in law, provided Mother demonstrates that she is a responsible parent and her failure to come forward previously was not due to an intent to abandon the child; or was not the result of misconduct, that would make it unsafe, and unhealthy for the child, to live with her. Sexual orientation is not misconduct. However, sexually explicit behavior before a child; or other sexually or morally offensive behavior may allow the Court/Judge to find the Mother unfit; but not allow the ex brother in law to continue as guardian of the child if the Mother offers a alternative Plan. Mother should go to state with all of her financial and other living arrangement documents and information, as may be necessary. Also, be prepared to spend lots of time and money, for forensic examinations, Attorney for the Child or Guardian Ad Litem, and other costs, as the Court may require.

In addition the age, sex and preferences of the child may be a factor in whether the Mother should proceed.

If the child is 14 years or older they have input

If the case is in a Court of a corresponding Family Court in the other state, they may correspond with investigators in the Mother's state to verify her living circumstance. Should investigate the services available.

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9/11/00, 5:27 pm

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