Child custody question

[ms1031]

My 21yo cousin died this past Saturday due to injuries sustained from a 4wheeler accident. So young, so vibrant, gone entirely too soon.

She left behind her 2yo baby girl.

She married in March to a young man who is not the babies biological father. For that matter, there is no father listed on the birth certificate. The husband has also not applied for adoption of the child.

Now, who should have immediate custody? Should the child go to a biological aunt, uncle, or grandparent? Or does the "step father" have rights to her at this time?

It's all so horribly sad.

 

[Stitchfans]

not an expert but my guess would be the grandparents if no one knows who exactly the father is.

 

[ms1031]

For the record, I understand this is not a legal forum, and that the vast majority of members here are NOT lawyers. I'm just looking for some advice for the family from maybe someone who knows more than we do or has been in a similar situation.

K, thanks!

 

[ms1031]

I guess the biological father is another link to this situation. He has never acknowledged the child, never been involved in her life, and has never expressed any wanting to be a part of her life. My cousin was happy to not have him involved.

Quite a mess.

 

[Darcy03231]

Every states custody laws can vary greatly. Here in NH whoever wants the child would file a Petition for Guardianship with the Probate Court. Everyone who has a biological tie to the child would be notified (ie grandparents, aunts, uncles) and the Court would have a hearing to determine who is most fit for the child. Custody usually is given on a temporary basis first until the Court can appoint someone to look after the child's best interests. If the step-father is looking to keep the child with him he should consult a family law attorney in the state he and the child live in.

 

[Toby'sFriend]

that's sad.

I can only tell you what happened in a similar situation that I knew the people involved, I think this is one of those "varies by state and case" situations.

In that instance, the Father died. The child had to go and stay with the Grandparents for about 2 weeks I think. Social Workers went to the family house (Stepmother) and did a bunch of stuff in order to grant her some kind of "temporary" license - I guess a Foster care type of thing. After that was completed the child was allowed to go back and stay with the Stepmother in the old house. I know there was also some stuff where the Social Workers helped the child apply for Social Security type benefits.

Then more stuff with Social Workers and a Psychologist and the Stepmother applying to adopt and then a hearing with a Judge was held. Other family members were given the chance to petition for the right to adopt or place their objections - that kind of stuff. The Grandparents went to the hearing and gave their support to the Stepmother adopting.

I think there was actually a series of meeting with the Judge. Eventually, the Stepmother adopted the child.

Obviously, other cases will be different.

 

[Sandy V.]

The child will most likely be placed in the custody of a family member. Specifially WHICH family member depends on a variety of things, including their home situation, stability, age, etc., and of course, who wants the child (although just because a family member wants to be the custodian doesn't mean that they're the right choice and the court won't automatically award them custody just because of that).

The initial hearings for custody are temporary and there are lots of steps involved to make everything permanent down the road, including possible adoption.

A guardian will have to be appointed for the child to manage her legal and financial affairs (the child will be eligible for social security and possibly other benefits). This person is answerable to the court so that they don't have the ability to steal the child's money away from them in this position of trust.

Usually biological parents have superior custody rights to their children, but if this guy has never been involved in the child's life, he wouldn't be granted initial custody. However, consider the fact that he MAY choose to get involved in all of this and that will certainly complicate matters. If he is sincere in wanting to have a relationship with this child, the court may give him visitation, a little at a time at first (supervised) and then it may expand far beyond that to a fight for full custody.

What a sad situation. OP, I wish your family the best of luck in this difficult time.

 

[krdisneybound]

someone needs to contact an attorney ASAP to keep this from getting way out of hand. That child has to be protected right now.

Best of luck in your endeavors - keep a calm head at the onset

 

[Tat2ddisneymom]

I guess if she didn't have any kind of a will, custody would definitely go to a family member. Most likely, eventually the stepfather, if he will have her. If not, probably the grandparents. Such a sad situation. But a lawyer definitely needs to be involved ASAP.

I am so sorry for the loss of your cousin. Its always hard when a young parent leaves children behind. Hopefully the court system will be able to decide what is best for the child without causing a family dispute. Hugs and prayers to your family and that special little baby girl.

 

[MidgeD79]

My daughter Jessica, died 4/29/06 at the age of 26 from a brain aneurysm. She had a 10 year old dd and 3 year old ds. DD went directly to the father. Ds never had a father listed. Jessica had gotten married 10 months before her death to a guy who was not the father. I got the 3 year old with no argument from anyone. I went to court to get visitation of the 10 year old. In 2/07(10 months later), the father of the 10 year old died of a drug overdose. Huge court battle of "the grandmothers". The "other" grandma got the 10 year old, but we have joint legal custody and every other weekend visitation. There are no sibling visitation rights in Michigan. I wouldn't wish this on anyone.

 

[ms1031]

Thanks for the kind thoughts and prayers.

It was just heartbreaking to hear the little one ask, "Where's Mommy?" during the service today. Then after the service is over my uncle leans over the casket and says, "I'll be seeing you again baby."

We just aren't supposed to lose them so young.

 

[ms1031]

Oh Midge, I'm so sorry.

 

[MidgeD79]

They still ask a year later.

 

[golfgal]

This is so sad for everyone.

 

[manning]

This is a classic example of needing a will. You can designate who you want to raise the child and often the court will abide by the will.

 

[madcam]

The only info I can contribute is that (at least in TX and LA....not sure what state laws are where you are) just because the father is not listed does not mean that he doesn't "exist". In fact he can still go to court, AT ANY TIME, even if he does not see her for the next 10 years, and get them to enforce his parental rights. Doesn't mean that they will but it does mean that, unfortunatly, dead beat dads have legal recourse. For instance, had your cousin's husband decided to adopt the baby while your cousin was alive, the court would have appointed an attorney-ad-litem for the biological father. Your cousin would have then had to provide any info she had on the bio-father even though no one is listed in that spot on the BC (name, birthdate, last known address, last known employer....etc.....whatever she had) then they would try to contact him. If they couldn't find him then they would run a newspaper ad for X amount of days. Then you go to court. At this point either he was not found or he was found and did not respond (he would have been told "this legal action is taking place on Dec 1 2007 at the Blank County Court" he can show to contest or not). Or he was found and shows up in court to contest. Then the judge listens to whatever is said and makes his ruling. I will add that he may have not EVER laid eyes on that child, he can still contest. It really all comes down to which judge you get at that point. I also know that, at least over here, it is EXTREMELY rare to the point of never happening, that a judge will sever a biological parent's rights without an adoption happening in concurence and an adoption can not occur unless someones rights have been severed. (Since the mother is deceaced, I am not sure how this works.) Whoever petitions for guardianship of your cousin's baby may still have to go through something like this. I can't think of a reason why they would not try to give the biological father the opportunity to contest anyone else getting custody.

On a personal note.....I think it is BS. If he deserved to have her then he would already be in the picture and there would be NO question of who she went to. But don't get down about it because if he has provided no support/ had no relationship with the child then alot of judges will take all that into concideration and that is if he even contests. If he hasn't been in the picture so far then he is really not likely to.

One piece of advice: If your family, or your cousin's husband wants to retain custod of her and they find out that do have to contact the bio father.......avoid trying to contact him through his family or friends. His family may put tremendous pressure on him in this situation. That is their biological granddaughter, neice, cousin etc. If they know about it, they may shame him or pressure him into "stepping up to the plate" when he may have just walked away had no one known.

Good luck to your family. I know this is a less than ideal and scary situation during a very sad time in your family's life. I am sorry for your loss

 

[darlak]

My suggestion is that you contact an attorney in your area that specializes in Family Court law. It will probably be simplier to just go through Probate Court, but the lack of a legal father may complicate things. If so, the attorney may advise you to file a petition in Family Court for temporary custody until a resolution in either court. The stepfather has no legal rights that I am aware of in any state. Either court, (Family or Probate) will appoint a Guardian ad Litem for the child and probably have CPS investigate. Both parties will make recommendations to the court regarding the child's best interests. A consultation with an attorney will put you on the right path and make sure you've followed all the proper legal avenues in your state. Good luck.

 

[dreamcometrue]

This is a classic example of needing a will. You can designate who you want to raise the child and often the court will abide by the will.

I agree! It's a horribly sad situation and it brings tears to my eyes, both OP's and midge's stories. My DH and I wrote up a will that states where the kids should go incase something happens to both of us. It's not a pleasant thing to do, but IMO, any parent should do it!

As far as I know, here in CA, the person who wants the child would petition to the court. If there is more than one, the court will eventually decide who gets custody!

Good luck with everything!