My children are 13 and 14. When my ex and I split (we were common law married) they lived with and stayed with me on the weekends or every other weekend depending on their schedule. No custody agreement had been made with the courts but I've been paying child support. She recently married and left the state to be with her new husband who is very sick. She left the children in her home in the care of her 20 year old daughter. While she has been gone, I kept the children with me or stayed with them in my ex's home for the first month. Now, she has been gone for two months and this month the kids have practically been living with me and my new wife. My children's mother hasn't been paying the bills as she has been missing work and things are getting shut off in the home. The older daughter does not work so there has been no food in the home for a month. My wife and I want to bring my children to live with us in our home, changing their schools to the county I live in. The children have asked for us to take them as they are very unhappy at their mother's home while she has been gone. No one knows when the children's mother will return to the state, or if she will. Do I have rights and if so what do I need to do to take custody of my children?
1 Answer from Attorneys
You certainly have rights, but since you were never married paternity must be established by the Court. You may be listed on the birth certificates for the children, but likely have few guaranteed rights since the children were born outside of marriage and you have not been to court to formalize any custody/visitation. I am also assuming that the child support you are paying has been voluntary and not court-ordered. In the event your child support was court ordered you would almost certainly have been declared the father - so this may not be an issue.
You will need to file an action seeking temporary and permanent custody of the children. The first step in that case will be a temporary hearing where you will ask the court to award you temporary custody of the children. Your ex must be served with notice of the motion and hearing time. These cases can be complex and difficult to navigate through the system, so I would encourage you to speak with a lawyer in your area to help you out.