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Father trying to get custody of children.

Hermiston, OR |

My ex and I have 3 children, we were never married. Almost 3 years ago she moved to Chicago IL and took my kids with her. Out of the blue she says if I pay for the plane tickets for my kids shel let them stay for the summer so of course I paid. They've been with me for 3 months so far. My kids are 7 & 8. All they talk about is how badly they are treated over there, how much they hate living there, and also their very malnutrition & underweight big time. The plan was for them to go back after summer but with all the horror stories I'm hearing its not safe for them to go back but I'm not sure what I can do. I'm not sure if she has custody, I was never informed. Can I call CPS so they can at least have the right to stay with me until we can take this to court? (info: I am biological father)

Attorney Answers 3


  1. In the absence of a court order to the contrary, in theory, both of a child's biological parents have equal custody rights. In practice, though, the courts will recognize the custody rights of the parent who has been raising the children most of the time. If you've had no contact with your children for three years, then unless their mother deliberately did everything she could to keep you away from them, you'll be seen as having 'slept on your rights' and declined to try to be involved with them; you face a substantial disadvantage in custody litigation. More importantly, the state with the jurisdiction to decide their custody will be the one where they've lived for the past six months. You will likely need to litigate this issue in an Illinois court.

    Getting Oregon Child Protective Services involved is a possible means to shortcut this, but it's very, very risky. The fact of the matter is, parents often make reports to CPS alleging abuse of their children by the other parent, to try to get an advantage in custody litigation. Sometimes they lie outright; other times, they convince themselves that their stories are true. (The human mind has a vast potential to convince itself of the truth of propositions that happen to coincide with one's self-interest.) I'm not saying that this is what you're doing, of course; but I am saying that people do it, so CPS workers and judges will all have this possibility in the back of their minds. If you can't prove the allegations, it's bound to be perceived as abusive of the process, and you could face legal consequences.

    All that said, of course you have to act to protect your children from abuse. I would suggest that you start by consulting an attorney in private. You can decide whether to take the children to CPS for evaluation. If you phrase the inquiry as a question, not an accusation - "I'm concerned about some of the things the children have been saying, what should I do?", rather than "I know that the children are being abused" - then your chances of making a positive impression and swaying the state agents to your side are much greater. You may still have to litigate the matter in an Illinois court, but Oregon can enter a temporary order that the Illinois court would recognize.

    Nothing posted on this site is intended to create an attorney-client relationship. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com


  2. If you have information that the children are being abused or neglected, you should definitely follow up on that. However, there are some other fundmental issues you need to address as well: You and the mother were not married. Are you legally the chilrens' father? Has paternity been properly established? If you are legally the childrens' father, you need a court order establishing your parenting time with the children. Are you providing any child support for the children? Are the children living the way they do because mom ignores them or because she has no money or not enough money to support them on her own? Please do not answer these questions online. Unless an exception applies, the UCCJEA has a state other than Oregon as the home state for the children. If they are still living in Chicago, then Illinois may be the home state. I would contact an Illinois attorney who has experience dealing with domestic relations and paternity law in that state. Paternity may have to be decided pursuant to the law of the state where the children were born. These things need to get sorted out. In any event the good news is that mother and the children want you to have a relationship with the children and that your time with the children this summer has gone well. Build on that. Good luck.


  3. In addition to Mr. Bodzin's answer below, I would add that calling DHS/CPS to report the concerns can sometimes backfire by having the child end up in stranger foster care without either parent. You've given some information regarding the mother, but none about you. It is possible that DHS could investigate and end up worried about both parents, which ends in a request to remove the children altogether. If you have a negative history yourself, then this could happen. The mother could also claim issues against you that DHS would need to investigate. Further, there are often allegations made by DHS of "failure to protect," meaning that you failed to protect the children from abuse from the mother and therefore are unsafe yourself.

    I recommend that you speak to an attorney about your options before proceeding so that someone with all of the facts can give you good advice.

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