I'm over his bs, PLEASE help!

Anna - posted on 05/11/2015 ( 14 moms have responded )

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So my ex is what I call a "sometime dad" I hate the fact he can come in and out of my children's lives whenever it is convenient for him. So my question is even tho he signed the birth certificates and birth affidavits, we haven't been to court so does he have any legal rights? When I placed a restraining order on him the councilor at the court said until he takes me to court he has no rights that in the state of Indiana until proven by DNA since we was not married, it's a mothers state and the law goes off of maternal rights.

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Ledia - posted on 05/12/2015

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That advice was incorrect. Until you have a court order defining custody, both parents have equal legal rights concerning the child(ren).

When he took your children and the Amber Alert was issued, was he arrested, charged, and convicted of kidnapping? If not, it was probably because he is the legally defined father to the children he took, so he had rights that someone who is not the father did not have. (I assume he was still arrested and convicted on the domestic violence charges that landed you in the hospital?)

You CAN move out of state with your children, unless you have a court order stating that you cannot do so (which you do not have), or your state has a specific provision preventing or forbidding you to. Before you move, you should get a written statement of that advice from your attorney just in case your state has some provision. That said, moving out of state can heavily complicate future court proceedings should their father decide to take you to court. Not only will you have to deal with courts in both states (which could have differing laws), but you might have to prove that your move was in good faith and the best interest of the children, and not to reduce their father's access to them. The court will not look kindly upon you if it appears you are trying to keep their father out of their lives for no good reason.

In regards to his past criminal records, in Indiana, if a parent is convicted of domestic violence in the presence of the child(ren), the court is required to order supervised visitation for at least one year from the date of the conviction. So if you have a conviction against him for the time he put you in the hospital, he will only get supervised visitation (unless it's been more than a year, but even if it has been that long, the judge will consider the conviction in his or her decision). If he fails to show up for any of the supervised visits, you can document his absence, and when you go back to court to amend the order, you can use that documentation to show the court that increased visitation is not in the best interest for the children as he does not exercise his current rights.

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Ev - posted on 05/13/2015

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You have a complicated situation then. The judge that did the domestic violence charges was more than likely a criminal judge and they do not make the decision on the family court cases unless he felt that the kids being in the presence of the father would be harmful to them. You are going to have to find a lawyer and have a long chat about what your actual options are. I would not be moving until I was sure that the court said it was okay and that visitation was set up to such a schedule that could be done. Also you need to show proof of the other thinggs you mentioned here because without that its just he said and she said.

Ev - posted on 05/13/2015

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You have a complicated situation then. The judge that did the domestic violence charges was more than likely a criminal judge and they do not make the decision on the family court cases unless he felt that the kids being in the presence of the father would be harmful to them. You are going to have to find a lawyer and have a long chat about what your actual options are. I would not be moving until I was sure that the court said it was okay and that visitation was set up to such a schedule that could be done. Also you need to show proof of the other thinggs you mentioned here because without that its just he said and she said.

Anna - posted on 05/12/2015

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Yes he was arrested and did 9 months in the county jail, the domestic charge is still open because he has gotten two continues on that charge, I've talked to my lawyer on that case and I do not have to show up for court since the state picks up any domestic violence case the ended up with hospitalization or when children are involved so that wouldn't be a problem with me moving just need to keep in contact with him. When we went to court for the restraining order, he did not show up, the judge placed my children on the order too but did not say weather or not he their dad had any rights. I've continued to let my children see their grandmother, their dads mother, which is where he will pop up. She will argue with him and try to force him to leave but my children have seen him and he'll tell them his mother, me, my parents are the reasons he can't be their daddy and they become heart broken and upset, and i have to try and explain to them that's not the case without making their father look like a bad guy in their eyes, I will not talk bad about him to them no matter how much I hate him.

Anna - posted on 05/12/2015

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And I've never taken him to court because I was told it's a mothers state and that until we go to courts he has no rights, so I never took him because I do not want to share my children with him, I know it might sound kinda mean but I know what the drugs done to him, and how he breaks their little hearts every couple of months. But my work came to me with this opportunity 3days ago, so even if I would have requested a court date, they are setting dates 2 and 3 months out, then with the first court date they normally set another court date. Our system is so behind and messed up here it don't make any sense.

Anna - posted on 05/12/2015

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Thank you ladies, I was afraid of that being the answer, but I wanted other peoples advice, not the people here that know the situation and wants the best for me and my children and knows this would better our lives. They are telling me he has no leg to stand on. Thank you all 😁

Raye - posted on 05/12/2015

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You should have gone to court way before this. You could lose all your rights if you take the kids out of state without there being custody orders in place that allow your move. Find a lawyer that can help you. Indiana law might not help you in Arizona, so if your husband files a petition to the court in AZ after you've moved, you may be screwed.

Jodi - posted on 05/12/2015

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That could end up being a real mistake. You should get legal advice. If you move away and he claims you are alienating him from his child, there is the possibility you could lose custody - there are cases where this has happened.

Consult a lawyer - they may be able to draw up some parenting orders that he will agree to that can be notarised, but I can't say because I don't know the exact laws where you live. I would definitely not move until I'd had the advice of a lawyer....advice IN WRITING.

Anna - posted on 05/12/2015

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The reason I'm asking is because I have a great opportunity to move to Arizona, my job will pay for my move, my deposit on my house there,and will pay a portion of me going back to school, but I have to give an answer by the end of this month. Which with the courts here that's not enough time to take him to court and go threw that process. But I know that with his background(drug,alcohol,assault charges) and can't pass a drug test, and the fact he hasn't had a job in over 4years, hasn't had a to live in 4years, and just last July kicked in our door assaulted me sent me to the hospital, and took off with my children, the police put an amber alert out for them and found him at the Indiana/Ohio state line, so him taking me to court I'm not worried about that, I've had a DCS employee tell me he'd lose all his rights if he had any. I'm wondering if I can make this move without having to wait for a court date, or notifying him, since we haven't been to court.

Raye - posted on 05/12/2015

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He can take you to court and he could get more rights than you want him to have. If he is proven the father and can prove that you intentionally kept the child from him, the judge will determine what is in the best interest of the CHILD (not the mother). I don't know why you got the restraining order, but it may not be enough to keep him from his child if he chooses to go to court.

Jodi - posted on 05/12/2015

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Biological fathers do have rights. He may have to take you to court for them, but he still has them. You really don't want to be denying any of his rights and then have him taking you to court claiming you are keeping him from his child.

What you really SHOULD do is establish custody and visitation orders.

Ev - posted on 05/11/2015

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I would check the laws there with a lawyer. But you also might find that if he signed the birth certificates and other documents he could still have rights anyhow. And he could take you to court for visits anyhow as is his right in claiming to be the father.

Ev - posted on 05/11/2015

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I would check the laws there with a lawyer. But you also might find that if he signed the birth certificates and other documents he could still have rights anyhow. And he could take you to court for visits anyhow as is his right in claiming to be the father.

Michelle - posted on 05/11/2015

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You really should be asking a lawyer this. They will know the laws in your state and be able to give you accurate advice.
This is an international site and we aren't lawyers so the advice you get here may not be correct.

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