How Long Does it Take for a State to Get Jurisdiction Over Custody of an Infant

[TMCat]

My question involves a child custody case from the State of: Tennessee and New York

July 1st, 2010 I moved with my boyfriend to NY from Florida. It's where he is originally from and his family/parents live there. In January 2011 our son was born. My ex is in the BC and he filled out an AOP. Things were not working out between us, I can give details but I feel that might be unimportant. On 3 different occasions my ex took our son without telling me where they were going, when they coming back or any details at all and each time didn't come home till a day or two later, twice I called the police to make a report of it, but they explained they could do nothing but make the reports for me and advised me of numbers I could call for abuse hotlines. Things between my ex and I got to the point of him kicking me out. Of course I would not go anywhere without our son. I have been a stay at home mom and my ex was a bartender. He recently bought a bar with a partner. With the added stress of a new business since October 1st, my ex blatantly said, I can't do this anymore, I'm buying you a one-way ticket to Tennessee to your parents.

I had to pay to put my things and the baby's things into storage and my ex paid for our one-way ticket on the plane.

I have been in Tennessee for 2 weeks now and already signed up for and receive foodstamps/WIC/Medicaid. I have a Tennessee state ID. I have read that TN is unique in the fact that there is no required duration to establish residency, is this true and my son and I are now residents of TN? If so, can I file for custody here? I talked to my ex yesterday and he said he wants to come pick up our son in feburary for the whole month whether I want it or not because he wants his visitation rights and also for the whole summer. I tried to explain that you can't take an infant from their primary caregiver for that long. He did not care and said too bad, the baby is a resident of NY. I'm afraid if he picks up our son he won't come back. We were never married. What are my rights? What are his rights? I have already begun to file for child support too. I also read, in TN unwed mothers her sole custody. Is this true? Or would I have to still be bound by NY laws which state everything is 50/50? Would I have to move back to NY if my ex files for custody first? Sorry this was a long post. Any help/advice on what to do, steps to take would be greatly appreciated.

I am not saying my ex is unfit, but he is an alcoholic who owns a bar. He is always at work or there drinking. I even have audio recordings of him saying he doesn't care if me and the baby are homeless and him saying how drunk he is and audio of him puking outside in our apartment complex parking lot an so much more. His mother is a hoarder too. I'm not sure if your familiar with that disorder and the emotional baggage/ behaviors that are associated with that but he wants her to be the babysitter while he is away. In addition to it all he has a 45lb dog that has tried to bite the baby several different times. I do not feel the baby is safe without me. Is this relevant to custody?

[jk]

On 3 different occasions my ex took our son without telling me where they were going, when they coming back or any details at all and each time didn't come home till a day or two later,

In a little bit of research, I did see a reference to establishing residency for purposes of a divorce. That required 6 months in state to do so. I suspect the requirements for child custody actions would be the same.

a mother always having been in an unmarried relationship with the father has default custody in most states (if not all). As such, you should have been able to invoke the assistance of the police but I suspect they saw this as a show of power over the father and not one of true concern of a custody issue and decided to stay out of the domestic relationship situation.

yes, if your ex files in NY before you establish residency in Tenn and are able to take the fight to you, then you will be dealing with the courts in NY.

[aardvarc]

On 3 different occasions my ex took our son without telling me where they were going, when they coming back or any details at all and each time didn't come home till a day or two later, twice I called the police to make a report of it, but they explained they could do nothing but make the reports for me and advised me of numbers I could call for abuse hotlines.

Here's how police and the courts see this issue: you're living with him as if married, he is acting as the child's parent, has has free and unrestricted access to the child because the child LIVES with him. Even if you were married to dad, it's not a LEGAL issue that you don't know where they are or other details. If communication and control issues are a problem in the relationship, there are ways to work on that, but when it happened the FIRST time, and you continued to live there with him and parent the child together, THAT tells the court that you were perfectly fine with dad's judgement and ability to parent - even if he went out with the child without informing you. Now if there is some evidence that he spent that time in illegal activity, or that the child was somehow in danger while in his care during that time, that's a different matter. But there's no case here for police to have gotten involved nor for it to impact custody (especially since you KEPT living with him with the same access to the child).

Things between my ex and I got to the point of him kicking me out. Of course I would not go anywhere without our son. I have been a stay at home mom and my ex was a bartender. He recently bought a bar with a partner. With the added stress of a new business since October 1st, my ex blatantly said, I can't do this anymore, I'm buying you a one-way ticket to Tennessee to your parents.

Ok.

I had to pay to put my things and the baby's things into storage and my ex paid for our one-way ticket on the plane.

Ok, so there was an agreement.

I have been in Tennessee for 2 weeks now and already signed up for and receive foodstamps/WIC/Medicaid.

Then TN should be initiating a child support case against him, to reimburse the taxpayers for the amount of benefits for the child.

I have a Tennessee state ID. I have read that TN is unique in the fact that there is no required duration to establish residency, is this true and my son and I are now residents of TN? If so, can I file for custody here?

You can file, but if ex files in NY, I suspect NY will take the case, not only because that's where the child has been living, but because if dad is living in NY, NY will have better control of enforcing child support.

I talked to my ex yesterday and he said he wants to come pick up our son in feburary for the whole month whether I want it or not because he wants his visitation rights and also for the whole summer.

Has he been granted visitation by a COURT? THOSE are the only rights that he can enforce.

I tried to explain that you can't take an infant from their primary caregiver for that long

Absolutely not true. Now a court wouldn't be LIKELY to order such a long time, but in the realities of life, infants can do just fine away from their mother, even for extended periods. Just ask the great number of dads who have successfully raised children from infancy when mom died, got sick, got incarcerated, got rights severed by the courts, etc.


[quote He did not care and said too bad, [/quote]

Which is exactly what you can say to him if he attempts to pick up the baby without a visitation order, or in violation of such an order. Really....gotta learn to say "no", mean it, and follow through with it.

the baby is a resident of NY. I'm afraid if he picks up our son he won't come back. We were never married. What are my rights?

Until and unless dad established visitation, you are the sole custodial parent.

What are his rights?

He has the right to seek visitation, including the right to ask that you be the one to pay for travel expenses since you were the one who moved out of state. He also has the responsibility to pay child support, once either TN goes after him, or you bring a child support case of your own.

I have already begun to file for child support too. I also read, in TN unwed mothers her sole custody.

Unwed mothers in all states have sole custody, until the father established otherwise.

Or would I have to still be bound by NY laws which state everything is 50/50?

50/50 isn't normal in any state. It looks great on paper, but rarely works in practical application, especially once the child hits school age. You can expect that dad will get standard visitation, with alternating holidays, extended summers, etc.

Would I have to move back to NY if my ex files for custody first?

No, you wouldn't have to move, but the business of the support/visitation issue would be handled in court there, so you may "visit" a few times.

I am not saying my ex is unfit, but he is an alcoholic who owns a bar. He is always at work or there drinking. I even have audio recordings of him saying he doesn't care if me and the baby are homeless and him saying how drunk he is and audio of him puking outside in our apartment complex parking lot an so much more.

The burden will be on you to prove that the issues present a danger to the child. Being an alcoholic in and of itself won't do that. Convictions for DUI? Drinking-related incidents where the child was present?

His mother is a hoarder too. I'm not sure if your familiar with that disorder and the emotional baggage/ behaviors that are associated with that but he wants her to be the babysitter while he is away.

She can babysit at dad's house, or, you can attempt to convince the court that grandma's home isn't safe even if the child is being supervised (that's a high hurdle if grandma is actually anticipated to be there with the child).

In addition to it all he has a 45lb dog that has tried to bite the baby several different times.

Why was the baby EXPOSED to the dog several different times? See where the judge might have questions about YOU allowing the baby around the dog, but now questioning dad having the baby around the dog? Be really careful about this kind of thing, because it can hurt your credibilty to question dad on stuff that was going on while you were still living there WITH the child. It often serves to make BOTH parents look bad or have questionable judgement, or, even worse, it can be seen as "grasping at straws" to list as much bad stuff as possible about dad now that there's a custody issue, when it wasn't an issue that demanded action back THEN.

I do not feel the baby is safe without me. Is this relevant to custody?

Only if you can convince the court of the danger - but when you're talking about things that were going on when you were still living there WITH the baby, the court isn't likely to react to those things with any greater action than was taken at the time.

[TMCat]

As far as how things were going when I was around: I never let my ex go to his moms with the baby, without me. He would want to drop the baby off at his mother's while he went to the gym and run errands for the day, but I would always go and supervise. Also, when it comes to the dog, my ex had the dog for 6 years before the baby was born so no matter how many times I expressed my concerns, he would not find her a new home. When our son was first born, she acted protective towards the baby, nipping at people who got too close. With me, and only me, as the exception. But as the baby got older and more responsive/energetic the dog needed to be watched closer. I would tell my ex to drop her off at his mom's. I never let the dog in the baby's room so that it would be a 'safe area'. The baby was in his swing when the dog randomly just walked over and tried to nip him the first time. I would not allow the two near each other anymore but my ex would let the dog excessively lick the baby and when I tried to stop him and explain that, that is a dominance trait of the dog he would mock me and ask if I was the dog whisperer. Finally when I said I would not take care of his dog anymore while he was away he kept the dog at his moms for two months before we moved. During this month long visitation he is demanding, he will be living with his mom and the dog because his new apartment won't be ready till march.

So can I use this as concern when factoring visitation? Because it truly is one.

I found research that infants who are constantly uprooted lose sense of security and the parent-child relationship suffers too. By the time February comes around, my son will not know his father as well any more and I think short frequent visitations would be best to reacquaint them before any long term sleep overs.

Also I wanted to clarify, so even though my son and I live in TN now, and even though we established residency, NY would still be the state that resides over our case? Even if I file first here in TN?

[Dogmatique]

The court will trust Dad to keep his child safe.

I'm not seeing any proof that the child will be in any more danger simply because you're not present.

[aardvarc]

I found research that infants who are constantly uprooted lose sense of security and the parent-child relationship suffers too.

Unfortunately for lots of children, when parents can't get along and co-parent their children under the same roof, the child is going to suffer at some level and NEITHER parent is going to get the best parent/child relationship. It's that simple.

By the time February comes around, my son will not know his father as well any more and I think short frequent visitations would be best to reacquaint them before any long term sleep overs.

You can ask, but as Doggie noted, you were willing to leave the child alone with him many times. That alone tells the court that you approve of his ability to care for the child.

Also I wanted to clarify, so even though my son and I live in TN now, and even though we established residency, NY would still be the state that resides over our case? Even if I file first here in TN?

There may already BE an open case in TN if you filed for benefits for the child - however, the child has lived a majority of their life in NY, and NY is the state that would be enforcing child support. Even with you filing in TN, NY could STILL end up with jurisdiction if dad fights it - which may not necessarily be a bad thing given the pros and cons of TN vs NY as far as support enforcement, how long support can be ordered for, and other factors. These are all reasons why you really need to weigh jurisdiction issues with an attorney experienced in cross-state cases.