and was denied. He is married now with another daughter but wants to see his first child. She is now 6 years old. His dad won't talk to him about this. Can he find a new attorney and request s change of venue? Small town, inbred county. He has done nothing wrong (except stupidly sign over temporary custody). What can he do?
Family Law Attorney
Hire an attorney. Since you can't merely "sign over" custody, the attorney needs to figure out what he's done and the best way to attempt to fix it.
Please note that my answering this question, does not, in any way, mean I represent you for this, or any other case. You need to seek that actual face-to-face advice of any attorney in your area who can further explain the law as it applies to your case.
I am sorry that your family is going through this. Custody battles are very difficult and very costly, however the best interest of the child is priceless and having a relationship with the biological parent is important to the courts, chat with a couple local attnys and see what pros and cons they offer you. take care and I hope that things work out.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.
Nathan is right: your son needs to buy an hour of a child custody lawyer's time and go over the situation with counsel.
That said, Little Girl has now lived with Grandfather 83% of her entire life. It is NOT going to be easy to get Little Girl back, especially if Biological Father has not been financially supporting Little Girl and has not been going to see her very, very, very regularly.
Oh, and, no, you have not said anything that could possibly justify a change in venue.
You may feel that Biological Father "has done nothing wrong", and I assume he is not a drug addict or a criminal, but if he has abandoned his daughter (financially and through a lack of VERY regular contact) for someone else to parent 83% of her life, the courts are probably not going to share your view. Sorry. If I had raised a little girl night and day for five solid years and suddenly the child's parents decide they want to be parents again, I would not talk to you about it either. IF Biological Father has ANY chance at all in getting back in his child's life, Biological Father should expect to have to spend A LOT of money to get a very good lawyer to do a lot of work before that could possibly happen.
If you want to discuss this further with me, send me a note. Attorney Jere Franklin Ownby JOwnby@OwnbyLawFirm.com 865-633-6633
Child Custody Lawyer
Well you definitely need to talk to an attorney and I would take a copy of the "temporary" custody order when I talked to the attorney.
Generally speaking a natural parent has superior rights to the child over a non-parent. However there is a case in Tennessee called Blair v. Badenhope that says if there is a valid order transferring full custody to a non-parent the parent does not have superior rights and the parent that seeks to modify the order must prove a "material change in circumstances" and that returning custody to the parent won't harm the child. That "material change in circumstances" is usually a hard hurdle to get over. However Blair also says "a natural parent enjoys the presumption of superior rights under four circumstances: (1) when no order exists that transfers custody from the natural parent; (2) when the order transferring custody from the natural parent is accomplished by fraud or without notice to the parent; (3) when the order transferring custody from the natural parent is invalid on its face; and (4) when the natural parent cedes only temporary and informal custody to the non-parents."
Depending on the order you may be able to meet #4 in that the order only ceded temporary custody to the grandparent. If so the parent would still have superior rights.
If not it will be an uphill battle. Has dad been supporting this child? Has dad been regularly visiting this child? Why did it take almost 5 years for dad to do anything about it? These are the types of questions he will have to answer.
As for changing venue that would depend on where the child lived. Generally speaking venue would be with the court that issued the order. If the child lives somewhere else you MIGHT be able to change venue.
The answering of this question does NOT establish an attorney\client relationship. If you wish to hire me call me and we will talk about it, but as of now, I am NOT your attorney.