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Can I get temp custody in this kind of situation?

Bay City, MI |

I filed to change custody from my ex to myself of our one child. my ex is awaiting sentencing for a violent misdemeanor. court is in a couple of days. my ex has not yet responded to the motion. (does that look bad on her part?) I have a feeling she wont show up for the hearing or she might be in jail since her sentencing hearing is the day before our motion hearing.
if in the event that she is in jail, would it be reasonable for me to ask for temp custody of my child until she is released and we can visit the matter again?
if she is not in jail and does not show up, is it reasonable for me to assume she lacks interest and ask for temp custody still?

background info: my ex lives with her parents and they would probably keep my son with them if she went to jail. its just that, its not their responsibility, its mine and i want it. he has lived with them for 3 out of the 5 years hes been alive. he is in school, but not kindergarten yet (head start program) and i know for a fact (have his attendance records) that my ex only takes him 42% of the time. i have arrangements to have him enrolled in a preschool program where i live. (2.5 hours away form them) And I have all accommodations here that he will need. bed, clothes, toys, toothbrush, winter gear, etc.

Attorney Answers 5

  1. When one party is in jail and a motion is scheduled, some courts will grant temporary custody to the appearing parent and reschedule the motion for a future date (either when the other parent is released from jail or to have that parent appear by phone), but it is up to the individual court. However, I would not assume that she is going to jail since she is only facing a misdemeanor. If she doesn't appear and she is out of jail, the court can grant temporary parenting time and proceed on the motion anyway. It would not look good if she does not participate in the hearings.

  2. Yes on both questions. I believe this is the same advice I gave to you on an earlier post. You must be very anxious.

  3. The answer to both of your questions is yes.

  4. Why ask for temporary custody? It would not only be reasonable to seek temporary, but likely permanent change of custody. How much stability can your ex be providing if she is engaging in violent criminal behavior? I would strongly recommend consulting with a local family law attorney to plan your strategy, whether for temporary or permanent custody. AVVO is a great resource for finding an attorney. I wish you all the best.

    This comment is designed for general information only, and should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

  5. You haven't given us any information regarding your contact with your child. Have you had regular parenting time with him? Do you have any criminal history? Those are questions the Court will ask you in determining what is best for your child in this situation. I would strongly suggest you consult with an attorney to discuss any motions that you may want to file.

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