How do I gain custody of my kids when their mother has passed away? 18 Answers as of November 09, 2011

Hire a lawyer to file a suit to establish paternity (Tex. Fam. Code 161). You need a lawyer where the mother lived if she died within the last 6 months, or where the brother lives now. Serve the brother. Your lawyer will get a Writ of Attachment issued/prepared and then make the court date, submit the first DNA to the court in your original pleadings and ask for DNA on the second child. Do not wait, do this ASAP. The brother does not have legal rights unless you give them to him or let the kids stay with him long enough the law gives him rights. Cut off those rights now! Go to your S1, compete a Family Services Plan. Speak to your family about the FSP, make sure everyone is on board. Go to Base Legal, get a Will and a Declaration of Guardianship of Minor Children completed. Do all of this ASAP. Do not wait for your civilian lawyer - in case he or she does not know military rules, do what I am telling you NOW. I spent 11 years in the Marine Corps with four of those as a Legal Adjutant before going to law school, so I know the military rules. I also spend 65% of my time on family law matters. Accordingly, when I tell you these things, I am protecting you both in both the civilian and military context. Go get a Family Services Plan started, get a Will naming your children (be sure the JAG officer knows you have a possible but unconfirmed child) and Declaration of Guardianship of MInor Children. This latter document will be made part of your FSP. It serves, in case you are deployed or injured or otherwise unable to care for your children as legal authority for someone (usually a family member) to take care of the children. As soon as the Will, Declaration and Family Services Plan are done, get copies (keep the originals safe) to your civilian lawyer. These documents are beneficial to the civilian judge in that it shows (1) you plan to win - attitude is everything; (2) you are thinking ahead - a valuable consideration for the children's sake; and (3) you are putting your children first - you did not wait until you had to do this, you made the arrangements up front, got the Military on board, set up the records, etc. BTW - start asking what you need (most likely confirmed DNA and a Court Order) to get the children Dependent ID cards issues and get them enrolled in Tri-Care. Your S1 Officer will know what you need and will help you with this. Get the ball rolling on that, even if you can't complete without a Judges Order. The reason for this is that once you start the process, it builds a fire under the Judge's chair to get some resolution, it takes away from the Uncle's ability to delay the process for his own strategic advantage. Good luck on this endeavor.

You will have to establish your paternity of the children before you can proceed to pursue custody.

If you have not legitimated the children, doing so will be your first step. You will file an action for Legitimation in the county where the children reside. If their uncle has physical custody, he will be the Defendant. Your complaint will state that you are their biological father, you wish to be named their legal custodian, and you want full custody based on their other legal custodian being now deceased. You should consider contracting an attorney to assist you.

Was paternity established by another man? If not, I would call CPS.

File a paternity action to establish you are the father. You can get a court order for the paternity test. File as well your motion for child custody and visitation.

I don't know what CPS would do for you and the police do not typically get involved in child custody issues. They usually ask the parties to resolve their dispute through the court. But you should certainly try to elicit the help of the police to get your children back. Just make sure you bring with you proof that you are the father, which may or may not work. The problem is that, in Georgia, you are not the legal father of children born out of wedlock until you file something with the court. If getting the police involved does not work, then you will need to file a petition for legitimation in the county where the children currently reside. In that petition you can ask for sole physical and legal custody of the children.

You need to file an Petition to establish Paternity and seek custody of your children. Without additional information, I don't know what legal rights the brother has over the children and I don't know if a dependency action has been initiated. If a dependency action has been initiated, then juvenile court would have jurisdiction over the matter and you would seek custody through juvenile court.

You need to contact an attorney in the county where the children now live and begin a paternity case to be legally declared the father and have that court decide what specific parental rights you should have. Until there is a court order, you basically have no legal rights.

You need to petition the court for custody. If you have proof of paternity, you need to present that to the court, showing that you are in deed the father. The court will determine what is in the best interest of the child(ren).

Were the children yours? If so obtain an injunction in court for them to produce the children. You'll need a lawyer. Doesn't the JAG office offer legal services? If not get a lawyer.