My son a had my grandson for almost 2 years now. He never went and got legal custody of him. The mother doesn't have custody either. He was letting the mother pick chris up for visits and over night stays. Now the mother won't let him have chris back. Can she do that AND can he go take chris back from her legally. Please help me
1 Answer from Attorneys
If custody has never been established by the Court or a written Separation Agreement then as the father, he does indeed have custody and the mother does as well. Therefore, mother can certainly refuse to give the child back. Father can take the child back but he can not breach the peace to do so - meaning he can not simply storm over and take the child by force. If the mother is refusing to allow the child to return or visit, your son may need to have a temporary order put into place until the Court can formally decide who should have custody. The mother's refusal to allow the child to return to the father without good cause will most likely make her look bad in the eyes of the Court especially if the child has been with the father for a significant period of time. However, BEFORE you go to see an attorney your son should contact the mother first to see if this can be worked amicably as this will be less stressful on the child. Your son should be calm and appeal to the mothers sense of fairness and to what's fair for the child. Yelling, screaming and bantering about legal threats will accomplish nothing. If she still refuses, go see a family law attorney immediately and discuss the option of having an ex parte temporary custody order drafted. If granted, your son can go with law enforcement to retrieve your grandson.