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If the custodial parent (mom) is in jail, can the father assume custody even if denied by grandparents who have the child?

Roselle, IL |

the mother is in jail for a felony and her parents have her 4 year old son at their house. The father is trying to obtain full custody - he is the birth father and noted on birth certificate. Is he empowered to take his son from the grandparents?

Attorney Answers 5


  1. There are far too many missing facts here to answer your question. Things like who are you the asker and what is your relationship to the children? Was he married to the mother? Are they divorced? Does he have paternity established? Is he on the birth certificate? Does he have a visitation order? How long has she been in jail? How old are the children?
    Do the grandparents have a guardianhip order? How long have the children lived with the grandparents? Did the father pay chid support? Did the mother live with the children and the grandchildren before going to jail? If so for how long? As you can see there is a lot more information that needs to be collected before your question could be properly answered. The father needs to consult and perhaps even retain counsel to answer the question. It is far too complex an issue to address in this onine forum.

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  2. i assume the mom and dad were not married to each other. if dad is on the birth certificate, then legally he may be the dad if he signed the voluntary acknowledgment of paternity or if there is a court order saying he is the dad.

    dad should get a lawyer and file a petition for custody. name mom and the grandparents as respondents.


  3. The father needs to file a motion for custody ad not simply take the child from the grandparents. Assuming the father has signed the VAP, since he is on the birth certificate, he is legally the father and has the right to seek custody. The father needs an attorney to do this the correct way. Simply sowing up at the grandparents' home is not the correct way. Many more facts need to be presented before a specific plan can be made.


  4. Absolutely--judges, not grandparents, issue orders of court. Assuming this is a wedlock situation, here's the analysis.

    The case seems simple but it really is not--at least if the grandparents are properly motivated and have $ to invest in legal proceedings...then they can create significant barriers to what would otherwise be a swift proceeding.

    As stated, father has to file Petition to Determine Existence of the Father-Child Relationship. There are several formalities involved with such a Petition, but none that are terribly difficult or costly. As part of the Petition, father should request that the relationship be established and an award of custody be made.

    The first part of Petition [establishing the F-C Relationship] is easy enough. Because father is already on the birth certificate, his paternity is already PRESUMED [under IL Parentage Act & Vital Records Act], and the F-C Relationship will be established by the court.

    However, the "F-C Relationship" is a precondition for custody as opposed to an automatic award of custody. Mother may be in prison, but that does not mean Father wins "de facto."

    Father will request that court make its [apparently initial] custody determination to him. My guess is that the Court will enter an Order stating that Mother's right to visitation is "reserved."

    Now turning to the Grandparents. Once Court establishes the "F-C Relationship," they may immediately intervene in the suit and petition for custody. Since relationship will have been established, Grandparents won't have to petition under the Parentage Act.

    They may have a viable shot at standing by alleging that the child is NOT in "physical custody of one of his parents." This would be a tough sell, however, since "physical custody" has been narrowly interpreted in this context. "

    Physical custody" would not mean "physical possession" but something far more drastic, such as outright renunciation of legal custodial rights by Father, for example...which I do not see here at all under Illinois law.

    The Grandparents could, however, raise an guardianship action. In light of certain 2011 legislative amendments, their challenge could be cause for worry if they hire an attorney who knows how to deploy it to their advantage.

    Grandparents will also have grounds to petition for visitation as "the child is born out of wedlock, the parents are not living together, and the petitioner is a maternal grandparent." But they will face a tough burden, as it will run counter to the "superior custodial right of the natural parent."

    Father has a great case. However, I have come across cases where grandparents have spent with wild abandon when their grandchildren are at issue.

    The author provides the preceding information as a service to the public. Author's response, as stated above, should not be considered legal advice. An initial attorney-client conference, based upon review of all relevant facts/documents, will be necessary to provide legal advice upon which the client should then rely.


  5. Mr. Kamar did an excellent answer. dad should do something. To sit and wait makes his desire to have custody of the kids seem less important.