Who has rights until Legal Custudy is established?

[Catherinem]

My brother and his girlfriend were living together, had a baby then split. Last week I took him down to friend of the court to file for custudy of his son. His girlfriend was making him miserable and trying to get him out of his own house, he was trying to give her time to find a new place but she refused to leave or look for somewhere to go. So the same day we went to friend of the court we filed to have her evicted. So today as she was leaving she tryed to take there son while he was sleeping so he called the cops. The cops made him give her his son. I don't see how that was right, because there is no established custody yet! Was that the right procedure? Can the cops force him to give the child to her?? And when she leaves to go to work, can he go to her grandmothers (who watches his son) and take him back?? She is an unfit mother who didn't even want him because he is a boy, she doesn't feed or change him often or correctly and only wants his for the money not becasue she loves her child. What is his rights? What can he do?

[proudmama]

It is really sad when mothers use their kids for spite and to get money out of the other parent.

[tbyte]

The mother of a child born out of wedlock has full and total custody by default.
The father must petition the court for parental rights (visitation, decision making, etc). So yes, the police were correct (legally) in returning the child to the mother.
I encourage the young man to file for parental rights as soon as possible.

I am not a lawyer and this is not legal advice.

Firstly, please be aware that the Friend of the Court has a financial conflict of interest in determining child custody:

A Quick Summary of Title IV-D Funding and Incentives

Secondly, please understand that through various contracts with the Friend of the Court for enforcement services, the local police and prosecuting attorneys also share that financial conflict of interest.

Even in cases when the parents have been married, when custody has not yet been decided, and it plainly can be given to either parent, people on the FRC mailing list have reported that police have forced fathers to relinquish custody of their children to place them with their mothers, regardless of the facts of the case.

FRC : Fathers' Rights Coalition of Michigan

If I were your brother, I would join FRC anonymously and ask general questions that may help me. I would also search for a good lawyer, being very careful in my selection.

I might also read this:

Some Thoughts on Child Custody Hearings

tbyte: "The mother of a child born out of wedlock has full and total custody by default."

I'm not a lawyer and this is not legal advice.

This is 100% false.

The court of appeals requires courts to first figure out what the child's established custodial environment is:

"Under the CCA, a custodial environment is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship must also be considered."

The actions of the police to remove the child do not alter the child's existing custodial environment:

"The existence of a temporary custody order does not preclude a finding that an established custodial environment exists with the noncustodian or that an established custodial environment does not exist with the custodian. A custodial environment can be established as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order."

http://courtofappeals.mijud.net/Dige...de=view#436005

If i were dad, and I believed it to be true, I would seek a good lawyer who would argue that the child had an existing custodial environment with both mom and I were equal caregivers, or one in which i was the primary caregiver, if I believe it to be true. Furthermore, I would talk with my laywer about making sure that the court needs makes a best interests determination as to the custody of my child, and does not hold me to a clear and convincing standard by falsely starting from the presumption that mom has an existing sole custodial environment with the child that she and I raised together, as I feel is truthful and in the bests interests of the child as the father.

I would not allow anyone to falsely claim that mom has an existing custodial environment with the child without me, vigorously defending my role as one of the child's primary caregivers, and would not delay seeking legal help, as my child's time away from me can erode my claim as a custodian of my child.

[tbyte]

Originally Posted by Unregistered

I'm not a lawyer and this is not legal advice.

That much is clear, because you are 100% wrong.
First, there is absolutely nothing in the two paragraphs you cited indicating the custodial situation of a child born out of wedlock. They deal with the ability to prove a custodial relationship once the case gets to court. They do not address legal custody before that time.
Secondly, what you cited were excerpts of opinions. They are not laws or statutes.
Thirdly, here is the relevant LAW of the State of Ohio:

3109.042 Custody rights of unmarried mother.
An unmarried female who gives birth to a child is the sole residential parent and legal custodian of the child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.

Lawriter - ORC - 3109.042 Custody rights of unmarried mother.

PLEASE be aware that people make important decisions based upon the advice they recieve on these forums. PLEASE do not state the you are "100%" sure of something if you are not citing from laws or direct personal experience.

And if you are reading these forums for advice, PLEASE be aware that many people post advice based upon mistaken assumptions, or based upon the way they WISH things were rather than legal realities.
Always verify the advice you get, preferably with an attorney.

you wrote "Always verify the advice you get, preferably with an attorney."

Absolutely. I'm not a lawyer and this is not legal advice. Talk with a lawyer.

Also, the original post said "I took him down to friend of the court to file for custudy of his son"

I believed based on this statement, and the use of the term "Friend of the Court", that the child and the case are in Michigan, and as I understand it, the appropriate statue in Michigan is the Child Custody Act of 1970:

Michigan Legislature

To my understanding, Michigan has no specific presumption that a mother of a child born out of wedlock is automatically granted custody of the child.

In fact, Michigan law rejects this, saying (MCL 722.25):

"(1) If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence."

Michigan Legislature

There are lots of mitigating factors against fathers, and it's rare that a father receive custody of an infant, but IIRC there was a recent Michigan Court of Appeals decision where the COA overturned a lower court ruling and gave dad custody of an infant based on a review of the child custody factors. Sorry, I can't find it.

A good lawyer is going to understand this best, and has the skills to provide solid legal advice.