QUESTION
Can a paternal aunt get half custody of a child if the father dies and the mom has a mental illness and can’t keep a job?
Asked on Oct 16th, 2012 on Child Custody - Arkansas
More details to this question:
My brother committed suicide and his wife is a mess. She has never held a long-term job. She is stealing from the WIC program, smokes and deals pot, cheated on my brother numerous times during their marriage, and she has been diagnosed with bipolar disorder. She lives with her crazy; I mean very insane family, along with many, many other issues. Can my husband and I successfully gain custody of my five-month old nephew? Thank you!
18 ANSWERS
I am not aware of any situation in which a relative can have "half custody" of a child, however there are a couple of things you can do. One is to call the authorities (DHS) and ask them to investigate the circumstances of the child. Be aware, however, that DHS might remove the child and not place him with you, and even if they did, they have a legal obligation to work with the mother to get the child returned to her care. Another option would be to petition for guardianship in probate court. This might be the better way to go if you want to keep the state out of it. Also it is much faster. The fact that she cheated on your brother and hasn't ever had a job would not be factors a court would be likely to consider, but the drug use/sales and mental health issues are obviously quite concerning and could be the basis for a court to grant you custody.
Answered on Oct 19th, 2012 at 9:04 PM
Family Attorney serving Seattle, WA
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The Law Office of Kate M. Forrest, PLLC
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You can file a petition for non-parental custody, but it is very difficult. Unlike a custody dispute between parents, where the best interests of the child control the outcome, a parent can only lose custody if they are found to be unfit-it is not enough to prove that the child would be better off with you. Another option is to get the mother to agree to let the child live with you while she straightens her life out. It is meant to be a temporary, voluntary arrangement that can be terminated at the parent's will, but as a practical matter it can be a step towards preparing to file for non-parental custody, because you are more likely to have standing to request legal custody if the child is already in your physical custody and receiving day-to-day care in your household. I suggest first reading about the process generally here: http://washingtonlawhelp.org/documents/2448213100EN.pdf?stateabbrev=/WA/ Then consult an attorney about your individual case.
Answered on Oct 18th, 2012 at 8:30 PM
Cohabitation Agreements Attorney serving Cincinnati, OH
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Cathy R. Cook, Attorney at Law
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To obtain custody, you would have to prove the mother is unfit.
Answered on Oct 18th, 2012 at 8:24 PM
If you are seeking custody of the child, there are two ways to proceed: 1) you could bring a Juvenile Court PSS Petition seeking custody of the child, which would require the mother to do counseling, drug test, etc; or 2) you could file for Guardianship in the District Court seeking custody of the child. In both instances you will require the assistance of an attorney well versed in child welfare law in order to obtain the best results for all concerned.
Answered on Oct 18th, 2012 at 7:04 PM
Michael Paul Vollandt
Very hard. In California take a look at a case called "Harris" that is the leading case on the issue.
Answered on Oct 18th, 2012 at 6:42 PM
4 Awards
In Louisiana the threshold for non-parent versus parent custody is a showing that the child is likely to suffer "substantial harm" in their present environment, and that a change is in the child's best interests. Details such as a custodial parent's drug use, mental illness, inability to work or support the child and bad home environment are all factors that will be considered by the court and used to determine whether or not the child is suffering from "substantial harm." The child's school attendance records and grades are often an important indicator of their well-being, as is their general state of health, cleanliness, dress, etc. If a child is too young to be attending school, important factors are whether or not they are receiving needed neo-natal medical care, vaccinations, etc. and meeting developmental milestones in their eating, weight and cognition.
Answered on Oct 17th, 2012 at 1:39 PM
Criminal Defense Attorney serving Deltona, FL
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R. Jason de Groot, P.A.
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Get the mother to consent to temporary custody by extended family. Hire an attorney for this.
Answered on Oct 17th, 2012 at 1:38 PM
Tamara Marie Chin
Yes, but IIR will require a lot of work, effort and money. CPS may help.
Answered on Oct 17th, 2012 at 1:37 PM
Bankruptcy Attorney serving North Olmsted, OH
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James F. Lentz Attorney & Counselor at Law
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Maybe. First I think it is generous of you to offer to take in an infant who is likely in danger due to the current family situation. To better analyze how likely temporary and [ermanent custody is, I would encourage you to meet with a Family Law attorney.
Answered on Oct 17th, 2012 at 1:36 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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It is an uphill battle, and the bio-mom is certainly favored in the law unless she is incompetent or harmful to the child. That is what appears to be the facts here. You will be opposed as, if you are successful, she will pose some "benefits" due her as a single/widowed mom.
Answered on Oct 17th, 2012 at 1:34 PM
1 Award
It is possible but very difficult. Would need to obtain additional information. Has the child ever resided with you?
Answered on Oct 17th, 2012 at 1:28 PM
Steven D. Dunnings
Not unless the Mothers parental rights have been terminated. If the Mother is in such dire straights, why has Child Protective Services not been involved?
Answered on Oct 17th, 2012 at 1:26 PM
Civil Attorney serving Spokane, WA
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Glenn E. Tanner, Attorney at Law
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If you can prove she's unfit. Court is about evidence, not reality.
Answered on Oct 17th, 2012 at 1:23 PM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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If you believe the child is neglected or abused you need to report the situation to the child protection agency for further investigation. If that agency concludes that the situation warrants removal of the child from the home, you may be a viable placement alternative. Generally, however, in Colorado you have no legal standing to pursue an involuntary custody award without the mother's consent and active participation.
Answered on Oct 17th, 2012 at 1:21 PM
Divorce/Family Law Attorney serving Carlsbad, CA
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Anne B. Howard, A Professional Law Corporation
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File a guardianship action in Probate Court to get custody ASAP. The case may be transferred to Juvenile Court. Make sure you are ready to be investigated as a suitable placement for the baby. Any felonies and you will be excluded.
Answered on Oct 17th, 2012 at 1:21 PM
Family Law Attorney serving San Rafael, CA
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Warren Law Group PC
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Custody is typically unavailable to a non-parent. What you are seeking is a guardianship via the probate court.
Answered on Oct 17th, 2012 at 1:19 PM
Dispute Resolution Attorney serving Seattle, WA
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Law Offices of Helene Ellenbogen P.S.
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You can file a third party custody action if you believe you can show that the mother is unfit. Her bi-polar, if uncontrolled could be a factor as could her drug use and elements of her living situation. Her "cheating" is irrelevant as to parenting issues. If she has an endless stream of men coming through her house now, that could be a factor. You need to seek legal counsel as this is a very complex issue. You also need to be very clear that you will be investigated as will the mother to determine if a placement is appropriate.
Answered on Oct 17th, 2012 at 1:18 PM
Divorce Attorney serving Little Rock, AR
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Law Office of Kathryn L. Hudson
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If you believe your nephew is in jeopardy you should file for an emergency ex parte guardianship order, this will be good for 90 days then you can request a hearing for permanent guardianship. Before you do this you will want to have as much verifiable evidence and witnesses as possible.
Answered on Oct 17th, 2012 at 1:18 PM