Death of Biological father


#1

An attorney is more qualified than me to answer, but I do not believe that a step mother would be favored over a biological parent absent any unfitness as a parent or for ANY reason!!! I do not believe that she has any right whatsoever to refuse to let you see your son nor can she demand any child support payment from you. She has NO legal right to your son unless you signed adoption papers or terminated your rights! I cannot see any Court allowing her to have custody of YOUR son!!! GO GET YOUR SON!!! He’s 14 and not of legal age and cannot decide to live with a step parent anyway!!! She has NO RIGHTS in this!!! NONE!!! His father is DEAD! You are is MOTHER!!! Go get him!


#2

I went to pick him up and took law enforcement with me but in this very small town in NC they said if she didn’t want to let me have him there was nothing they could do.

I filed an emergency ‘enforcement of foreign order’ which was heard and denied due to the Judge stating she didn’t think that CA had jurisdiction. Now that this motion by the step mom is pending(I’ve been served) I don’t know what to do. I don’t have thousands of dollars to fight this and then have the courts let my son choose.

He would probably choose to stay there as he has total freedom regarding school, friends, etc where at our house we have rules (my husband is in law enforcement).

I don’t want to go take him and cause problems either…I’ve just never heard of this before. He is my son and should come home…if his father was alive this wouldn’t be going on…so not only has he lost his father…he is in jeopardy of losing his whole family on his mom’s side.

Thanks for your response…just wish it was that easy as I have tried to go get him. My husband says if it happened here where we live that my order would have been enforced by law enforcement on the day I went to pick him up…but she lives in a very small town. I can’t even find a lawyer there to help as over the years her and her family have used them all for various things. Every attorney I called stated they had a conflict when I gave her name.


#3

Unless there was a custody action pending between you and your ex Husband at the time of his death, the stepmother has no legal means to gain custody. A pending actions means that there was an issue on which the court presently needed to make a ruling. In your case it does not sound like that is the case. If you retain an attorney they should be able to deal with it rather easily. You will need to file a motion to dismiss her claim for lack of jurisdiction. If you cannot find an attorney within the town where she lives, I would try around to see if you can find some outside the town that still practice in that county. I wish you the best of luck.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#4

So even though my son has lived there with her(and his dad) for 3 years that town doesn’t have jurisdiction?

I thought jurisdiction was based on where the child had lived for the past 6 months. Her attorney is even saying that my custody order is no good since it was between my ex and I and now he is deceased.

Pamela Ruelas


#5

The answer to your question is slightly confusing. Any third party can sue for custody of any child at any time. However, the law gives a preference to biological parents and intact families. As long as she cannot prove that you are unfit, or acting in a manner that is inconsistent with your constitutionally protected status as a parent, then she will not gain custody. The only way she would have visitation rights, is if she was a party to the action prior to the death of your ex-husband.

That being said, as a practical matter, your son probably has a relationship with this woman and it sounds like she had some level of interest and involvement in his life. Do you believe it would be harmful to your son to call the stepmother and try to work out an arrangement where he can visit with her in the future? Good luck, it sounds like this is a difficult time for everyone.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#6

This is a terrible situation and the second time this year I’ve read of a biological parent dying and there being an issue with the stepparent and custody.
His wife does not have legal rights to custody as long as one biological parent is still living. Even if you hadn’t shared joint custody.
Please get an attorney and in the end, try to work out something with the stepmother for visitations if she wants. It does not mean that she will be paying you child support unless there was something in your ex’s financial paperwork about his estate paying out, but it will give her and your son a chance to keep their relationship going. It will also let your son know that you are thinking of his feelings.

Children do not get to choose in custody matters, especially if they are only choosing because of less restrictions. Unless you are willing to give him up to her then there’s not a lot that she can do. It makes sense that during his father’s illness your contact was limited, but it should never be restricted completely. Your son needs to know that you are there for him. Keep in mind that he is a teenager and that he may need some counseling after this. You are his mother and he should be with you.
Since she was not mentioned in your custody order and you have not been proven unfit by your ex then she would have no right to custody and her attorney should know that. Had you been proven unfit you and your ex would not have been sharing custody. Your court order is only invalid to the point that it was between you and your ex who is now deceased. The courts do not feel it is necessary to put a statement into all custody orders that should one biological parent pass, the other parent automatically takes full and primary custody because custody at that point is not in question. It goes to the other biological parent unless there has been some reason previously legally entered into court.
I wish you the best and keep us posted.


#7

My ex husband and I had joint custody of our 14 yr old son. I had let him go live with his dad 3.5 yrs ago. My ex husband died from lung cancer on july 31 2007 and the step mom is refusing to let me have/see/speak with my son.

She is not mentioned in the custody paperwork and has now served me with papers where she is trying to get custody of my son and for me to pay her child support.

During the past 4 months I have had limited contact with my son due to his father’s illness and them both telling him that he could ‘choose’ when and if he saw or spoke with me.

There is 1 half brother that is 22 and away at college at the stepmoms. There are 2 younger half siblings that that live with me that miss their brother terribly. I have been remarried for 12 years and my husband is a deputy sheriff.

Please help and tell me what to do to get my son back home.

Pamela Ruelas