Can I get temporary custody of my husband's child while he is in jail? 23 Answers as of September 12, 2011

Can I receive temporary custody of my husband child while he is in jail? The mother has passed away and now the child is living with the grandparents. He has full custody.

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Law Office of Roianne H. Conner
Law Office of Roianne H. Conner | Roianne Houlton Conner
You would have to get a Court Order to take the child from the grandparents.
Answer Applies to: Alabama
Replied: 9/12/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
The first question you have to cross is if you have "Standing" to bring the lawsuit. Standing is a right to "stand" before the court and ask for relief. In general, if you have no personal connection to a matter, then you cannot sue on that matter. Think of it this way, a husband and wife are the parties to a marriage, it would be inconceivable to allow the wife's sister to file and prosecute a divorce between the married parties because the sister has no personal stake in the outcome. In Family law, standing is defined for the purposes of child custody. As a step parent you "MAY" have standing - the father always has standing. Tex. Fam. Code 102.003 defines standing and a step-parent is not a named person per se. That said, there are caveats and rules that may bring you in. For example, if you had actual care, custody and control of the child for at least 6 months, ending not more than 90 days ago .
Answer Applies to: Texas
Replied: 9/9/2011
Law Office of Michael W. Bugni
Law Office of Michael W. Bugni | Jay W. Neff
Probably. However, that may be more than you need. What might make more sense, and be easier and cheaper, would be an agreement between the two of you for you to have care of the child while the father is in jail, and a power of attorney, signed by the father, giving you the power to take care of the child.
Answer Applies to: Washington
Replied: 9/8/2011
The Law Office of Erin Farley
The Law Office of Erin Farley | Erin Farley
This is a guardianship issue, and is something that is best worked out between family members.
Answer Applies to: California
Replied: 9/8/2011
Dunnings Law Firm
Dunnings Law Firm | Steven Dunnings
Blood relatives would have priority over you unless you adopted the child.
Answer Applies to: Michigan
Replied: 9/8/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    You can apply for temporary custody of the chi8ld while he is in jail. Call me if you like.
    Answer Applies to: New Jersey
    Replied: 9/8/2011
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    You may petition the court for temporary custody, however, one of the questions may be - how long have you and the child's father been married? Also, as the child lived with you the entire time?
    Answer Applies to: Illinois
    Replied: 9/8/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    Maybe. I can help you with this. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 9/8/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    He could sign a power of attorney to you to manage their schooling and medical care and living with you while he is incarcerated. That should be sufficient.
    Answer Applies to: Wisconsin
    Replied: 9/8/2011
    Michael D. Fluke, P.A.
    Michael D. Fluke, P.A. | Michael D. Fluke
    It is possible. The court will consider the best interests of the children, the length of incarceration, how long the children have been with the grandparents and where the grandparents live amongst many other factors. I suggest you consult an experienced Family Law attorney to discuss your case in greater detail and learn all of your rights and options. Good luck.
    Answer Applies to: Florida
    Replied: 9/8/2011
    Doi/Luke, Attorneys at Law, LLLC
    Doi/Luke, Attorneys at Law, LLLC | Gavin K. Doi
    It is possible, but it may be difficult. Generally speaking, parents have constitutional rights to their children; if third parties (often time grandparents) petition the family courts for custody of a child, the court will have to find both parents unfit before overriding their constitutional rights and awarding custody to another party. In this instance although there is no mother to contend with, the grandparents may oppose you in court for custody, particularly if the child is already living with them. It's probably advisable for you to speak with a local attorney to discuss your specific facts and chances.
    Answer Applies to: Hawaii
    Replied: 9/8/2011
    Law Offices of Arlene D. Kock
    Law Offices of Arlene D. Kock | Arlene D. Kock
    The grandparents should file a request for guardianship if the child is best situated with them. If the child would be better served by being in your care, then you should file for guardianship.
    Answer Applies to: California
    Replied: 9/8/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    If the grandparents do not agree that you should have guardianship over the child, they may contest the guardianship action. At that point the court would perform an investigation and attempt to determine where the child should live according to what they deem to be in the best interests of the child. They will look at the connection and relationship that each party has with the child and look at the home, community and friends as well. You should contact a lawyer so that they can review the particular facts of your case with you.
    Answer Applies to: California
    Replied: 9/8/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    The answer would depend on many factors including your historic relationship with the child. You should consult with an experienced family law attorney.
    Answer Applies to: Minnesota
    Replied: 9/8/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You question suggests that there is a disagreement between you, your husband, and the grandparents. If that is true, it may become necessary to obtain a court decision to decide what is in the child's best interest. Generally, as the sole parent your husband's constitutional right to parent his child includes the right to delegate parental responsibility to you. If the grandparents are rejecting the father's decision and refusing to accept his delegation to you, they may or may not have any standing to challenge his decision. For that reason, you need to consult an attorney who can evaluate the options based on a full understanding of the facts.
    Answer Applies to: Colorado
    Replied: 9/8/2011
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    It might be easier for you to obtain guardianship of your husband's child. You should be able to do this with his consent, but there are many factors to consider in deciding how to proceed, including how long he will be incarcerated and how long the chlid has been with the grandparents. I encourage you to speak with an attorney to discuss the process in greater detail.
    Answer Applies to: Arizona
    Replied: 9/8/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You can't get custody of your husband's children, but you can file a Guardianship case to become their guardian during your husband's incarceration.
    Answer Applies to: California
    Replied: 9/8/2011
    Law Office of Margaret D. Wilson
    Law Office of Margaret D. Wilson | Margaret Wilson
    It appears that you may have left out some very important facts. However, generally speaking , in rare situations a stepparent can get custodial rights.
    Answer Applies to: California
    Replied: 9/8/2011
    Law & Mediation Office of Jeffrey L. Pollock, Esq.
    Law & Mediation Office of Jeffrey L. Pollock, Esq. | Jeffrey Lawrence Pollock
    If you were acting "in loco parentis" before, then you should be able to petition for "standing" to be able to pursue custody against the paternal grandparents.
    Answer Applies to: Pennsylvania
    Replied: 9/8/2011
    Thomas Humphrey, Attorney at Law
    Thomas Humphrey, Attorney at Law | Thomas Humphrey
    You may be able to do so. However, you will need to file a motion with the court seeking an order granting you temporary custody. The Court shall determine temporary custody by determining what is in the best interests of the child.
    Answer Applies to: Idaho
    Replied: 9/8/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    Step parents do not have rights to their step children. If the father is in jail and the mother has passed away, you might want to discuss with an attorney whether you can file a deprivation petition in juvenile court to get temporary custody. Your case will be very fact based and you should discuss the details with an attorney.
    Answer Applies to: Georgia
    Replied: 9/8/2011
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