What if the temporary custodian refuses to give our son up?

Question: During an extended stay visit with my mother-in-law, my son was said to have discovered a heart problem. In order for him to be given the best care, he was left with his grandma and we verbally agreed to give her temporary custody for one year.

We have now discovered that our son never had any problem with his heart and my wife’s mother is using her custody of him in an attempt to control my wife. My wife has had a rough family history, including being abused as a child.

So how do we end this temporary custody agreement that is becoming more and more like sole custody?

Answer:

Child custody cases are very fact-specific, and with the limited information you have provided and this online question-answer format allows, I can only give you general information. The most important information I can give you is, as parents with full parental rights in tact, you and your wife have federal constitutional rights to the care, custody and rearing of your son, and, since the United States Supreme Court’s decision in Troxel v Granville, you and your wife are entitled to preference over a third party for custody, including a third party who happens to be your son’s grandmother.

That she has had custody of your son and some sort of authority to make medical decisions suggest she has some legally enforceable right to custody and control. Does she? Did you, in addition to making the oral agreement (which is not a court order, and like unenforceable even as a “contract” because it deals with parental rights), sign an agreement for a court? Have you received children’s protective services support? Is there an active case against you and/or your wife? Is there already a custodial arrangement ordered that you merely modified? If the answer to any of these questions is yes, the preference you and your wife receive as a matter of federal law loses force or disappears.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Illinois. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information and legal representation. Cordell & Cordell has many attorneys located in Illinois.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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