The father of my daughter wont give her back

Vanessa - posted on 01/17/2016 ( 8 moms have responded )

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My daughter is 6 yrs old she has liveved with me since birth im the one who took care of her when she was sick the one who spent sleepness nights in the hospital her dad and i had a verbal agreement for visitations so he took her for his weekend and decides to not give her back what do i do i did nothing wrong to deserve this i cant sleep i cant focus i cant stop crying for the fact my daughter is out of my care she probably thinks i dont want her is there anything i can do ?

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Carol - posted on 01/20/2016

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I put all of that.. to say.. she needs to check her state and yes definitely get court orders in place everyone is right about that.... If she checks around and that is a statute in her state... she could get her daughter back now by filing kidnapping charges with the police.

Carol - posted on 01/20/2016

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michelle not in illinois.. that is why I put all that information under the post. I am not sure what state she is in.. but if he pays her child support, she has legal custody even without the custody order.. if they are not married and he never signed any acknowlegment of paternity... or involuntary adjudicated to be the father.. .he has no rights at all.. I am not sure what the relationship is.. In illinois, if you take a child she could call the police.. it is a class 4 felony. Its kidnapping...

Carol - posted on 01/19/2016

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Please read this.. This is in Illinois... Maybe your state is the same.. You can possibly file for abduction charges on him.

Question:

My 2-year old daughter lives with me. The father and I were never married, but he signed papers agreeing he was her father. There’s no court order for any child support or for custody. The father says that because there’s no custody order, there’s nothing I can do if he takes the child and keeps her. Is that right?

Answer:

No. If the child’s been living with you, you’re presumed to have legal custody, even without a court order. Then, if the father keeps the child from you, it can be child abduction, which is a Class 4 felony.

This comes from Article 10 of the Illinois Criminal Code, which covers “Kidnapping and Related Offenses.” Child abduction is one of those related offenses.

If there’s a court order giving someone custody, somebody else can commit that crime by intentionally “concealing or detaining the child.”

When there’s no custody order at all, a father commits child abduction if he “intentionally conceals, detains or removes the child without the consent of the mother or lawful custodian of the child.” For the specific purposes of this criminal law, it doesn’t matter whether paternity has been established or not.

In general, though, a man with no proof of paternity has no rights at all concerning a child. Until they voluntarily and formally acknowledge in writing that they’re the child’s father, or are involuntarily adjudicated to be the father, they’re a complete outsider, and have no rights.

The child abduction law fills the vacuum when nobody has gone to court and gotten a custody order. Then, the law presumes that mom has legal custody.

Specifically, it says: “It is presumed that, when the parties have never been married to each other, the mother has legal custody of the child unless a valid court order states otherwise.”

The abduction law goes on to say that if a court case established paternity, and provided that dad either pay support or get visitation, then mom has legal custody. That derives straight from the Illinois Parentage Act, which says: “If a judgment of parentage contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting custody to the other parent.”

So, mom is presumed to have legal custody, when the parents were never married, and there’s no court order saying otherwise.

In that situation, the only exception is when mom “has abandoned or relinquished” custody of her child to “an unadjudicated father who has provided sole ongoing care and custody of the child in her absence.” Then, abandoning mom commits child abduction by concealing or removing the child.

That, at least, is what the criminal law says. But, there’s no guarantee that the police or state’s attorney will enforce that law just how you’d like, or as quickly as you’d like. Having a regular custody order can save you from arguing with them for help.

Getting a custody order requires filing a petition, serving it on the other parent, and going to court. Then, the law says a judge “shall determine custody in accordance with the best interest of the child.”

Michelle - posted on 01/17/2016

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Like Sarah said, you need to go to court and have custody, visitation and child support signed off by a judge.
By law he can keep her for as long as he likes because he is her Father and has just as much right as you do to have her.

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