How can I get custody of my sister's child? 20 Answers as of January 09, 2013

My sister just passed away recently, and she had 5 children. Four of the children are under my mom's care, She was awarded custody years before my sister passed. The youngest who is 3 years old, stayed with me after her passing. My sister was residing with me, and had told me that she wanted me to baptize the child just in case anything happened to her, the child would stay with me. I know that is hear say. The child's father is incarcerated, and has been for the past year and a half, he will not be getting out for about 10 months. I would like to gain custody of the child even after he comes out. I want him to have visitations but not full custody. He has an extent criminal record and I have seen firsthand verbal and physical abuse towards my sister. What can I do?

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There are a number of options, i.e an affidavit delegating parental authority, guardianship, possible adoption,
Answer Applies to: Michigan
Replied: 1/9/2013
Law Office of Barton R. Resnicoff | Barton R. Resnicoff
You will have to file for custody, the sooner the better; so that the father is less likely to be successful. If you receive custody before he is released, it will require him to show a reason why it should be changed. Domestic Violence is also relevant on custody, especially if it was in the presence of the child. Did your sister leave a will regarding guardianship of the child? That will also be relevant, if it was done.
Answer Applies to: New York
Replied: 1/4/2013
Law Office of Vincent D. Sowerby, P.C. | Vincent D. Sowerby
You certainly have the right to file your own petition in court and to represent yourself; however, I advise you to hire a domestic relations lawyer. You can get what you want if you know how to do it but do not hire a lawyer who does not regularly practice family law.
Answer Applies to: Georgia
Replied: 1/4/2013
Law Offices of Arlene D. Kock
Law Offices of Arlene D. Kock | Arlene D. Kock
File and serve a petition for guardianship of the child.
Answer Applies to: California
Replied: 1/4/2013
The Law Office of Erin Farley
The Law Office of Erin Farley | Erin Farley
File for guardianship of the child immediately. Currently, the law in California gives greater weight to guardians than it does parents. If dad has a criminal history and you have witnessed violence, then likely the court will only allow supervised visits with the child until he can prove he is safe.
Answer Applies to: California
Replied: 1/4/2013
    Hamblin Law Office | Sally Hamblin
    File a petition with the probate court for custody.
    Answer Applies to: Michigan
    Replied: 1/4/2013
    Grace Law Offices of John F Geraghty Jr.
    Grace Law Offices of John F Geraghty Jr. | John F. Geraghty, Jr.
    You can file a Petition seeking custody.
    Answer Applies to: Georgia
    Replied: 1/4/2013
    Mary W Craig P.C. | Mary W Craig
    Get a lawyer and go to court to get official custody of your niece. You shouldn't try this on your own. If you can't afford a lawyer, check with your state's bar association and see if they have a program where lawyers will handle this kind of thing for free for people who need help.
    Answer Applies to: Alabama
    Replied: 1/4/2013
    Law Office of Kristine McDonnell | Kristine McDonnell
    File for guardianship.
    Answer Applies to: Ohio
    Replied: 1/4/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    File for guardianship. You will have to notify all of the interested parties, but assuming that you are the most fit (and have established a relationship with the child), you will be probably be awarded custody. Then when dad gets out, visitation is up to you. Dad could file to terminate the guardianship, but he would probably have to prove that he has cleaned up his act considerably.
    Answer Applies to: Idaho
    Replied: 1/4/2013
    Victor Varga | Victor Varga
    File for custody and argue that its in the child's best interest to be with you.
    Answer Applies to: Maryland
    Replied: 1/4/2013
    Pollock & Associates LLC | Candice Ragsdale-Pollock, CWL
    In reply, you have two options: 1) seek legal Guardianship, which will allow the father to retain his parental rights upon release from prison; or 2) file to adopt the child and terminate the father,s parental rights based on a) his abandonment of the child (incarcerated for over a year and he wont be out for nearly a year longer), b) his neglect of the child due to his criminal behavior (it only takes 6 months to abandon a child 3 years of age and under, or 1 year for a child over 3), and c) the father's inability and/or unwillingness to correct his behavior towards the child, ie not showing the interest of a natural parent for the child as his criminal behavior clearly shows. I would seek the services of a Child Welfare Law Specialist to assist you in this matter.
    Answer Applies to: Utah
    Replied: 1/4/2013
    In Nevada you can file a Petition for Guardianship right now. It is a guardianship of a minor.
    Answer Applies to: Nevada
    Replied: 1/4/2013
    Law Office of Joan M. Canavan | Joan Canavan
    You need to file a Petition for Guardianship in the Probate Court of the County in which you and the child reside. Based on the fact that biological mother(your sister) is deceased and biological father is unavailable( incarcerated ), you will receive temporary guardianship of the child. The court will hold a hearing to allow Father to respond to the petition, at which time your temporary guardianship should be extended with a review scheduled for when Father gets out of jail.
    Answer Applies to: Massachusetts
    Replied: 1/2/2013
    Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
    There is a provision in the Wisconsin statutes permitting people who have a 'quasi-parental' relationship with a child to seek visitation. Judges are not very sympathetic to this law, but your situation evokes more sympathy than many. But the child's father is presumed to be the 'natural guardian' of the child. A court can award custody to someone other than the father upon a showing that it would be very much in the child's best interest to do someaning, among other things, that the father is not capable of exercising custody in the child's best interest.
    Answer Applies to: Wisconsin
    Replied: 1/2/2013
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    You need to file to have the court appoint you as the child's legal guardian.
    Answer Applies to: Colorado
    Replied: 1/2/2013
    Woods, May & Matlock, PC
    Woods, May & Matlock, PC | Robert J. Matlock
    You can file a suit affecting the parent-child relationship and ask for custody of the child.
    Answer Applies to: Texas
    Replied: 1/2/2013
    R. Jason de Groot, P.A
    R. Jason de Groot, P.A | R. Jason de Groot
    You should consult with a local attorney about filing a petition for temporary custody by extended family. It would be best to get the father's consent, but he cannot possibly take care of the child while he is in prison. The temporary custody order can last until the child reaches the age of majority.
    Answer Applies to: Florida
    Replied: 1/2/2013
    File for legal guardianship of the child immediately. You don't want Social Services coming around and taking the child and putting it into foster care. I've seen that happen when a mother died and father wasn't around.
    Answer Applies to: California
    Replied: 1/2/2013
    Law Offices of Sherrie L. Davidson, LLC | Sherrie L. Davidson
    You need to file a guardianship case right away. At least you should get temporary custody and control. What happens long term will be determined in part by what the father does in the future.
    Answer Applies to: California
    Replied: 1/2/2013
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