custody of 5 year old

[whattodo25]

I am a father to a 5 year old boy who lives in South Dakota, I am currently stationed in Texas but will soon be stationed in North Carolina. Son was living with his mother off and on until August of this year. She then placed him with his grandmother and did not notify me until approximately one month later. I have asked her if she would please let me raise him until she is able to care for him herself, she refuses. There is no court order in place for custody but up until September she had always allowed me to visit him when I was home on leave and would take him for about 2 weeks at a time. Come September when I attempted to visit with him she said that if I showed up at her mother's house she would call the police.

I pay child support. Until October we had just made a deal between the 2 of us and I paid her monthly. In October we had a hearing for it and is now court ordered, but it's a bit of a strange case. Since child is living with grandma, support is sent to grandma which is what I requested because it seems fair.

I do have an attorney in SD, but things are going very very slowly. I retained him in September and the mother has yet to be served with anything. I am seeking joint custody with me being the custodial parent. I was able to speak with my attorney yesterday and finally had to say if something can't be filed by the end of this week I'm going to have to retain someone else. Today he emailed me a copy of what he is going to submit to the court. I looked at SD laws today and it seems that once his mother is served there will also be state statutes of visitation attached to it and that visitation shall basically be established. Does this mean that until we go to court to establish custody I am still entitled to exercise visitation? I am very concerned because of what happened in September and she has already said that I can come and pick my son up for Christmas but I'm afraid that once she gets served she will not allow that to happen. Without court ordered visitation you can see the dilemma.

I do understand that if I go to court and come out with being the custodial parent that it will be my job to facilitate my son's on-going relationship with his mother. I have offered to pay ALL costs associated with travel, I also offered to continue to pay support to his mom since I knew that she depended on it financially (this was before it was ordered to go to grandma), I also said that I wouldn't ask for support from her and I'm more than willing to do whatever else I need to do to maintain their relationship...ie, frequent calls, webcam, etc..

Also, my attorney suggested to get a home study done but I've looked and looked and can only really find information that pertains to families getting a home study done in order to adopt. Any suggestions? What are my chances? And can I petition the courts for temp custody since he is not living with his mother or do I have no leg to stand on because there isn't already a standing order??

[NYParent]

If I were you, I'd be very careful about your attorney at this point.  If you retained him in Sept. and he didn't do anything until December because you threatened to fire him, it sounds to me like he's not going to really concentrate on your case.  You should really try to find someone else.  You should have an attorney you can rely to get the work done, especially since you're not in the same state.

I'll be honest with you, you should prepare yourself that you won't get your son for the holidays.  That's going to be your punishment for trying to get custody of your son.

A word of advise on the travel.....I know that you're trying to be nice by offering to pay for travel, but that's not going to diffuse her anger or make her act more rational.  She sounds like she has the potential to be really vindictive (actually she's already proven that).  Your always playing Mr. Nice is going to get old for you and she will try to use it to get over you (trust me, I've been there).  As far as travel, I think you should offer to pay half, because that's fair enough.  If you get custody you paying everything, not getting child support from her and paying HER child support will get really costly soon.  Remember, when the child is with you, you will have more expenses.  Also, all this money you'll be laying out will not make her any nicer.

You should file for an temporary custody since the child is not living with the mother.  You are the child's father and have more rights to have your son than her mother.  Have your attorney file for an emergency hearing.  Also, is paternity established?  In NY when my DD was born the hospital had me fill out an Acknowledgment of Paternity and therefore the courts didn't have to establish paternity.  Having your name on the child's birth certificate does not establish paternity.  If you do not have a form like that, then you also need to have the courts establish paternity before you can move with the rest.

Also, get ready for a fight.  Read a couple of parenting plans that this site has.  It gives you a good idea of fair and detailed agreements.  You want to make sure it's detailed to avoid problems in the future.  I had a home evaluation, the court ordered it for both parents.  It was actually CPS in each state that preformed them in both homes (I live in NY, ex moved to TX).

Good luck and keep coming back here for advise and support.  It has been a life saver for me!

[whattodo25]

I know it's going to be a long fight, but I'm ready.
 
I've been looking at SD statutes for filing for temporary custody and it seems like there has to be a case of neglect or abuse in order for that to happen. That just seems odd. In a case like this when there is no abuse or neglect from grandma can I still file since he's not living with either of his parents?
 
This is the law that I was talking about when she gets served:
 
25-4A-11. <!-- WP Paired Style Off: SENU --> <!-- WP Style End: SENU --> <!-- WP Paired Style On: CL --><!-- WP Style End: CL -->Plaintiff in custody action to file and serve guidelines--Guidelines as court order--Custody of minors. <!-- WP Paired Style Off: CL --><!-- WP Style End: CL -->Upon the filing of a summons and complaint for divorce or separate maintenance or any other custody action or proceeding, the plaintiff shall also file and serve upon the defendant a copy of the standard guidelines. The standard guidelines attached to the summons shall become an order of the court upon fulfillment of the requirements of service. Any minor child of the marriage shall remain in the custody of the parent who has been the primary caregiver for the minor child for the majority of time in the twelve months preceding the filing of the summons and complaint, unless the parties agree otherwise. The standard guidelines shall apply and continue in effect, unless the parties agree, or the court orders otherwise. Imposition of the standard guidelines creates no presumption as to who may be awarded custody at any hearing.

<!-- WP Paired Style On: SCL --><!-- WP Style End: SCL -->Source: SL 2002, ch 125, § 3; SL 2008, ch 127, § 1.
 
Am I right? Does this say that when she is served with custody papers she will also be given a copy of the standard guidelines and those will be the order until a judge makes a decision? If I'm reading that right then Christmas will not be an issue because the guidelines state that the NCP shall have all but 3 weeks of summer vacation, Christmas every other year and springbreak.
 
So offer half of travel and no support? I just want to make it obvious to the judge that I am really trying to do what's in the interest of my son. She hasn't attempted to facilitate my relationship with my son, but I'm not going to pull the same things she has.
 
I'm not positive about the paternity. I am on the BC. I don't remember exactly what I signed (I know, not smart). But I think that the paternity is not going to be disputed. This is why I say that: if I'm not his father she has no clue who it is (original paternity was, according to her, between me and another guy. The other guy was not the father and really at this point he's my son regardless of what a test says) Also, I figured with the support case that gives me more proof that I'm his dad. Is any of this making sense?
 
So can I call CPS and ask them to come and do a home study?
 
<!-- WP Paired Style Off: SCL --><!-- WP Style End: SCL -->

[sillystring]

Well if the mother isn't taking the child, isn't she therefore neglecting him?
 
Get a new lawyer ASAP and have them file for custody and in that have him/her request that you immediately be granted temporary physical custody so that you can go and pick up your child.

[sillystring]

And offering to pay her support while you care for the child is NOT in the best interest of the child.  The purpose of child support is for the child, if you are just giving the mother money when she does not have the child then you are actually taking money AWAY from the child.
 
 

[mdegol]

I agree, you are being too nice.  Plus, paying all of travel would mean that it would be an open-ended cost that impacts her in no way.  What if she wants to fly first class?  Or gets her flight at the last minute?  I would say a child support deduction (which she should be paying, not you) that she can use toward the costs of travel.  Maybe that will mean zero child support, but she shouldn't profit from the situation.  If you can get her to settle by offering these things, then settle away, but make sure that your costs are clear and the process that will be used is also crystal clear (so many dollars per visit, so many times per year...ect).  You might want to think of a way that you could facilitate the child's relationship with the grandparents though, especially if they have taken care of child for a long time.  That way, that roadblock might be uplifted, because it might be them that she is fighting for.  You could offer to bring child every so often to see grandparents, or allow them to fly child to where they are...depends on your situation.  Might not be a good idea either, so take these suggestions for what they are worth.
 
I think you are very noble with your approach concerning paternity.  That's true love, and I hope that you get custody of your son!