Former Husband Has Child That is Not His - What Can He Do

[LizzyBeth]

My question involves criminal law for the state of: Michigan.

Former husband has kept my biological daughter, of whom I have full-custody, from me for over 2 years now. He is not her biological father nor does he have any legal claim to her. I have gone through 2 different 'Friend of the Courts' (the one for his county and the one she's in the system from custody battle with her biological father) neither court could help me. His county's FOC couldn't help because she isn't in their system and the one where she is in the system could only give me the previous court ruling that states that I have full-custody of her.

I have gone to the police station in an attempt to get them to remove her from the home and return her to me but have been told that since she has been with this man (in one way or another) for most of her life that she belongs with him and not with me.

I have talked to lawyers that have been unable to help me as well.

Is there anyway that this could be considered kidnapping? Or is there some other way that would allow me to get my daughter back?

[jk]

skip the police and go to the prosecutors office. If this man has no legal claim to the child, maintaining physical custody of her without permission is kidnapping.

even with that said, something deep inside me still tells me; there is more to this story that you have not disclosed. one call to the police is all it would take to have this remedied if it were as simple as you state. Since the police have refused to become involved, I believe there is more to the story.

[LizzyBeth]

skip the police and go to the prosecutors office. If this man has no legal claim to the child, maintaining physical custody of her without permission is kidnapping.

even with that said, something deep inside me still tells me; there is more to this story that you have not disclosed. one call to the police is all it would take to have this remedied if it were as simple as you state. Since the police have refused to become involved, I believe there is more to the story.

You are correct about there being more to the story but I wanted a shorter beginning post.

---

When we divorced I moved back into my parent's home and didn't have any room for my daughter. My ex and I decided that she would then stay with him (and her younger sister who is my ex's daughter), but only until I had a place of my own and a job. We originally had legal guardianship papers drawn up but I have since learned that he never actually filed them (the papers were drawn up/filled out about 3 years ago now).

For the months I was staying with my parents (about 6 months) I was allowed to see my daughters every now and then. But once I found a job and had somewhere to live, my ex cut off all contact with me and my family. I (and my family) tried to contact them for the next 6 months or so until we were informed by him and his new wife (then girlfriend) that they had gotten restraining orders for all of my family and that we could no longer contact them.

It took us another bit to actually look into the claims of restraining orders. We found out that they do not exist and so we then contacted the police, FOC, etc.

This is when we were told that we had no options.

[jk]

so, you voluntarily gave custody (although I am sure you intended it to be temp) to your ex. I surmise that since that time, ex has decided it is in the best interests for the child to remain with him, right?


Well, the police were right. The FOC in the ex's jurisdiction is right. The FOC in your jurisdiction is correct because the ex is not included in anything they are involved in.

So, what do you do?

Hire an attorney. Believe it or not, a court can order the child remain where it is if they believe that is in the best interest of the child. I do not know all of the story here, and really do not need to. You need to understand this is not going to be easy, especially if you have skeletons in your closet.
You need an attorney to help you with this situation. As you have found, there is very little anybody can do as things sit. You need a court to say you do have legal physical custody of your own child and not the non-bio father who now has the child in his custody.

You do have options but it is going to involve the courts. Unless you are very comfortable in doing this ( I can assure you, if you do feel comfortable, it is an improper feeling), you need to hire an attorney to do this. Especially when dealing with the well being of a child, the courts have the ability to do things that does not make "legal" sense to some. The courts have a lot of latitude.


btw; restraining orders, in Michigan, are not in effect until the person it is against, has been served with the order.

[LizzyBeth]

so, you voluntarily gave custody (although I am sure you intended it to be temp) to your ex. I surmise that since that time, ex has decided it is in the best interests for the child to remain with him, right?


Well, the police were right. The FOC in the ex's jurisdiction is right. The FOC in your jurisdiction is correct because the ex is not included in anything they are involved in.

So, what do you do?

Hire an attorney. Believe it or not, a court can order the child remain where it is if they believe that is in the best interest of the child. I do not know all of the story here, and really do not need to. You need to understand this is not going to be easy, especially if you have skeletons in your closet.
You need an attorney to help you with this situation. As you have found, there is very little anybody can do as things sit. You need a court to say you do have legal physical custody of your own child and not the non-bio father who now has the child in his custody.

You do have options but it is going to involve the courts. Unless you are very comfortable in doing this ( I can assure you, if you do feel comfortable, it is an improper feeling), you need to hire an attorney to do this. Especially when dealing with the well being of a child, the courts have the ability to do things that does not make "legal" sense to some. The courts have a lot of latitude.


btw; restraining orders, in Michigan, are not in effect until the person it is against, has been served with the order.

Can he still retain temporary custody (or any physical custody) when the agreement was only a verbal agreement? Seeing as no guardianship/custody papers were ever filed?

Thank you so much for your help. Even if it was mostly just explaining what others have said thus far. The physical custody part confused my family and I because I have something from FOC stating that I am the one with full-physical custody of the child. The only thing is that this document does not include the ex-husband's name since they were with my child's bio-father.

[jk]

=LizzyBeth;334850]Can he still retain temporary custody (or any physical custody) when the agreement was only a verbal agreement? Seeing as no guardianship/custody papers were ever filed?

as you have seen, yes. The courts do not want to cause injury to the child so they will review the situation. If they believe the child is not in jeopardy where it is, the courts could simply allow that situation to continue until they make a complete investigation and subsequent order.

they are concerned about the best interests of the child and will act accordingly.

Thank you so much for your help. Even if it was mostly just explaining what others have said thus far. The physical custody part confused my family and I because I have something from FOC stating that I am the one with full-physical custody of the child. The only thing is that this document does not include the ex-husband's name since they were with my child's bio-father.

You obviously have court ordered legal custody but first, realize that was concerning a dispute with the bio-father. Ex was not involved with that situation. Then, realize that there is a relationship that has developed with ex and the child and yours (whether you intended it to happen or not) has eroded. Simply grabbing the child from a person he sees as a parental figure (and that you actually allowed to be in such situation) and returning to you is not in the best interest of the child. There could even be visitation given you as part of the transfer process rather than a simple, immediate, transfer.

So, sit down and take a breath. You need to think of this from the protection of the child position. Not saying you will not get the child back, just do not take some knee jerk action and cause problems. You will need to deal with this properly, which is going to be through the courts. They will be more willing to return the child to you if you do not appear to be some whacko momma (not inferring you are. just don't make it look like you are).

Best of luck to you. I hope you are in a good position to where your childs return is now appropriate and you are granted such action. Many people go through troubled times. It is fighting your way out of those times that shows you are deserving of what you ask.

[Mr. Knowitall]

We seem to still be missing a huge part of this puzzle. You're stating that the child was born prior to your marriage to this man, he's not on her birth certificate, hasn't adopted her, has no custody through the courts, did not obtain guardianship of any sort, has not been placed with him as part of an abuse or neglect proceeding, and that the child lives with you only by virtue of your permission. Then you can pick up the child, any time you want. What's stopping you?

If the issue is that the police won't assist you in picking up the child because you voluntarily surrendered custody more than two years ago, that I suppose is their prerogative. But still, what's stopping you from picking your child up yourself?

Why can't lawyers help you? Surely, if you're telling us the whole story, every lawyer you've consulted has told you that you can collect your child. So what's stopping them from telling you that?

[LizzyBeth]

We seem to still be missing a huge part of this puzzle. You're stating that the child was born prior to your marriage to this man, he's not on her birth certificate, hasn't adopted her, has no custody through the courts, did not obtain guardianship of any sort, has not been placed with him as part of an abuse or neglect proceeding, and that the child lives with you only by virtue of your permission. Then you can pick up the child, any time you want. What's stopping you?

The fact that the Ex-husband and his new wife refuse to answer the door or allow me to get my child.

If the issue is that the police won't assist you in picking up the child because you voluntarily surrendered custody more than two years ago, that I suppose is their prerogative. But still, what's stopping you from picking your child up yourself?

Explained above.

Why can't lawyers help you? Surely, if you're telling us the whole story, every lawyer you've consulted has told you that you can collect your child. So what's stopping them from telling you that?

I've been told that I can't just 'go collect her' because I told him that he could have temporary guardianship of this child. Mostly, they say that to remove the child from this home could be damaging because it would involving moving her away from her school (I live out of that school district), away from her friends, and away from her sibling.

[Mr. Knowitall]

Wow. The child is kept inside, behind locked doors, and never sets foot in the sun.

You told us that there is no court ordered guardianship. If all he has is your permission, then every lawyer you've spoken with has told you that you can revoke it at any time. Are you asking them about their concerns about your child's socialization, or about your legal rights - because whether or not it would be traumatic for you to pull her out of your ex's home has nothing to do with your legal rights. If you're not going to be straight with us, how are we supposed to help you?

[LizzyBeth]

Wow. The child is kept inside, behind locked doors, and never sets foot in the sun.

You told us that there is no court ordered guardianship. If all he has is your permission, then every lawyer you've spoken with has told you that you can revoke it at any time. Are you asking them about their concerns about your child's socialization, or about your legal rights - because whether or not it would be traumatic for you to pull her out of your ex's home has nothing to do with your legal rights. If you're not going to be straight with us, how are we supposed to help you?

How have I not been straight with you?

No she is not kept behind closed doors at all times, BUT on the times when i have gone over (we live in different cities so I cannot go over every day and just sit outside the house) she is kept from me.

I agree with you that whether or not it would be traumatic for the child to be removed shouldn't dictate whether or not I can have my child but unfortunately the cops, CPS, etc do not agree. Hence why I have been actively working on this for the past year, since finding out that the restraining orders do not actually exist.


This child has been in a house where the adults HATE me for about 3 years now, only for 6-8 months of that was I allowed contact. I have no clue what they have been telling my child about me nor what her current feelings are about me. This (her feelings about me and our relationship) is part of the reason why the cops and CPS were worried about simply removing her from the home immediately. Not to mention that this removal from the home would also involve separating the child from her sibling.