How do I go about getting legal sole custody of my son?

Asked over 2 years ago - Rocky Mount, NC

I am a single mother and my seven year old son has lived with me since birth. His father is not active in his life at all. There is a child support order but he doesn't not pay and some how never is in place to be servied for his court dates.He is also a resgisterd sex offender. I am planning a to take my son on disney curise, I went to apply to get his passport and was told I had to get his father to sign papers as well. I was shocked. I was told the only way around it was to have sole custody of my son. What is the first step I need to take?

Attorney answers (1)

  1. Glenn S. Doyle

    Contributor Level 12

    Answered . I am sorry to hear about your difficulty. I commend you on your hard work in raising your son alone and investing in his happiness with what sounds like a great trip. Unfortunately many parents who never formalize custody arrangements of their children run into these types of problems, whether it be school, travel, or other matters requiring the input of both parents.
    Your son will need a passport to travel out of the country, and this will require the consent of both parents. If you are unable to locate the father or he refuses, then your only recourse would be to file a lawsuit seeking sole legal custody (or joint legal custody and a court order requiring him to consent to the passport) or an action to terminate his parental rights. You may file for custody at any time, and the District Court in the county you reside will issue an order granting custody of your son based upon the best interests of the child. The Court typically will decide specific issues such as your passport problem upon request if it is set for hearing. From your description, I would be shocked if you were not awarded sole legal custody, but you really need the assistance of a family law attorney to take the matter to court.
    If he has abandoned the child physically and financially, your chances of success with a termination of parental rights are also strong, however his obligation to pay ongoing child support would end, and there is always a chance that you would be unsuccessful. Accordingly, unless he consents to a termination, your best bet appears to be filing an action for custody which will definitely result in a court order. Any lawsuit requires the Defendant to be served with the complaint and summons, which means you really need a valid address, however he can be served by publication if he cannot be located.
    In a nutshell, obtaining a custody order granting legal custody to you should be relatively easy in light of the circumstances you describe, however it takes time and you will incur some legal fees unless you attempt to do it yourself. Typically a temporary custody order (granting you temporary legal custody and dealing with issues like a passport) can be obtained within 90 days or so after filing your complaint if service can be obtained. Your other option, terminating his parental rights, would in essence make you the only parent by law, but has other ramifications that you should discuss with your attorney. It could also prove to take much longer.
    I suggest you speak to an attorney in your jurisdiction to discuss your options. Its possible the father can be located and will consent to signing the passport documentation with a strongly worded letter from an attorney, however your larger problem is the lack of a formal custody agreement or court order. Until you have the custody of your son legally formalized, I am afraid you will run into this type of problem again.
    Good luck and just remember that as you long as you have a few months before you plan on taking the cruise, your problem can be handled and you and your son can look forward to a great cruise.

    The information contained in this response is general information and is not legal advice. Nothing contained in... more

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