Verbal agreement re: custody

[Mrstvp]

My husband has a 13yo son with baby's mama. She lives in NM, we live here in CA, nothing has ever gone thru the court system. Has had allotment of voluntary child support from the beginning. They had an agreement 3 years ago that son would stay with us for 3 years straight. Less than half way thru the agreed time, she took him back without notice and in the middle of the school year. Now son is older and seems to have no stability/structure with mom in NM, we want him to stay with us again full time to get him back on track. Will we have any leverage if we have her sign a motorized statement that she agrees to let dad have full time custody for such n such time. And if she takes him back before said agreed time period is up what can we do. Any thoughts are welcomed. Thanks

[sandyclaus]

Re: Verbal agreement re: custody

My husband has a 13yo son with baby's mama. She lives in NM, we live here in CA, nothing has ever gone thru the court system. Has had allotment of voluntary child support from the beginning. They had an agreement 3 years ago that son would stay with us for 3 years straight. Less than half way thru the agreed time, she took him back without notice and in the middle of the school year. Now son is older and seems to have no stability/structure with mom in NM, we want him to stay with us again full time to get him back on track. Will we have any leverage if we have her sign a motorized statement that she agrees to let dad have full time custody for such n such time. And if she takes him back before said agreed time period is up what can we do. Any thoughts are welcomed. Thanks

Any statement, notarized or otherwise, carries no legal weight unless a judge has signed off on it. As you said, there was a verbal agreement for both custody and child support, neither or which have ever been lodge with the courts.

If Mom and your husband weren't married at the time that the child was born, then Mom holds all the cards. She has SOLE legal and physical custody of the child, and is under no legal obligation to even permit visitation with your husband at all.

I suggest that you let your husband and the child's mother work this situation out. If Mom doesn't agree, there is absolutely NOTHING your husband can do, short of actually pursuing custody through the courts.

[Friend In Court]

Re: Verbal agreement re: custody

My husband has a 13yo son with baby's mama. She lives in NM, we live here in CA, nothing has ever gone thru the court system. Has had allotment of voluntary child support from the beginning. They had an agreement 3 years ago that son would stay with us for 3 years straight. Less than half way thru the agreed time, she took him back without notice and in the middle of the school year. Now son is older and seems to have no stability/structure with mom in NM, we want him to stay with us again full time to get him back on track. Will we have any leverage if we have her sign a motorized statement that she agrees to let dad have full time custody for such n such time. And if she takes him back before said agreed time period is up what can we do. Any thoughts are welcomed. Thanks

No, an informal custody agreement can be set aside by the court at any time.

What your husband will need to do is file a petition with the court in New Mexico for custody, support, visitation --what he wants the arrangement to be. An action cannot be brought in California unless the child has resided in California in the last six months, the UCCJEA the appicable law.

What is in the father's favor is that the child is integrated into his home by virtue of his living there for a year and a half -- school, the community, etc. In order to gain cusody he will have to conclusively prove (1) he is the father of the child, (2) has had the child integrated into his home with the mother's consent, (3) the child has done well by virtue of being under his care and control, (4) and it is in the child's best interests to remain in California than be uprooted and sent to live with the mother in New Mexico.

Contested custody matters can be expensive, engender lifelong enmity between the parents -- especially if one attacks the other. So he would be well advised to take the high road in any contested custody matter and focus on the elements that are in the child's best interests remaining with him.