Baby momma in jail

My sons mother lives with her mom. My wife and I have him every weekend and whenever my sons mother wants a nite out. She was recently arrested in New York State for Robbery and other charges. She is incarcerated without bail. We did not find out about it for a week, until we went to pick him up and her motger told us. As his father do I have to return him to grandma or can I keep him and file for custody?

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