1. SilverWolf0101
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    SilverWolf0101 Active Member

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    Child Custody Legal Questions

    Discussion in 'Research' started by SilverWolf0101, Jun 8, 2013.

    So I have this story idea that I'm kinda writing when I have some down time, and one of the major conflicts of the story is when the main character looses her younger brother to child services.
    I'm well aware of the reasons that child services would step in and remove a child from the home, that's not my problem. The thing(s) I'm seeking answers on is the court issues. Like when the sister goes to court to fight for rights to get her younger brother back, even if it means fighting for custody of him.
    I don't know much about the workings of custody concerning children (the brother is twelve). So I'm wondering, can the sister gain custody of her bother even though she's 18-20 yrs old (I haven't decided on her age completely yet)? Also, how much would her being a high school drop out doing odd jobs affect her chances of getting her brother back? Would the brother, twelve, have any voice in the court room to help decide where he might end up?

    I might have more questions after a little bit of the laws is explained to me, so please bear with any questions. Thanks for at least taking the time to read/look at this.
     
  2. thirdwind
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    thirdwind Contributing Member Contest Administrator Reviewer Contributor

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    I can't answer all of the questions, but I know that you have to be at least 18 to legally take custody. The person taking custody would also need to show that he/she can provide for the child.

    I know that for divorce custody cases the child (assuming he or she isn't too young) has some say in where he/she wants to go, although the court has the final say.
     
  3. erebh
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    erebh Contributing Member Contributor

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    UK/Irish child custody laws are completely different than the US - seeing as you're from NYC maybe join this forum - http://www.mdjunction.com/forums/child-custody-discussions - there are tons more forums on this subject
     
  4. chicagoliz
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    chicagoliz Contributing Member Contributor

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    There would be different factors, and they would differ in different states. The twelve year old would have a say and most likely the court would appoint an attorney to represent his interests. The court (or the 12-year old's attorney) would most likely seek psychological assessments of the sister and of the brother and those psychologists would testify and would prepare reports about whether the sister is the best guardian, etc.

    The standard is supposed to be what is in the best interests of the child. Many factors would come into play in assessing this, and the sister's lack of education and limited job/employment/income prospects would factor into this determination. It could also make a difference whether there is another adult who is seeking custody of the boy -- that person could possibly have his or her own attorney, in addition to the attorney for the State's child services division.
     
  5. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    in most cases of this sort, the court appoints a guardian ad litem to represent the child's interests...

    the sister would have to show that she is of good character, has no criminal record, is in good physical/mental health, and can provide adequate supervision, if she's employed... along with being financially able to support the two of them... the home environment would be investigated and have to be approved by the child services agency... and her lifestyle would be under the microscope...

    failing to satisfy the court on any of those criteria could leave the boy in foster care...
     
  6. madhoca
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    madhoca Contributing Member Contributor

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    ^^ That sounds pretty much like UK law. The same is true if grandparents want to take custody of a child. It's by no means as simple as movies often make out.
     
  7. SilverWolf0101
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    SilverWolf0101 Active Member

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    I sort of figured this wasn't going to be an easy answer question, so hopefully if I provide a little more information about the scene/conflict in question it'll give you a better understand of what exactly I'm trying to figure out. Please bear with me, as this scene isn't completely written out and still going through a few twerks to try and make it work out, or at least believable to some extent. So here's the deal:
    The two siblings in question are part of the lowest class on the social standards, they're down right poor (and I mean that in the worst ways imaginable sometimes). They're mother isn't a very good person to have around, she is seriously ripping off the government in terms of getting her rent paid and getting food assistance (I know here where I'm at it's called SNAP Benefits, not sure about other places). However, instead of using the foodstamps as she should, the mother sells it off for drugs and beer, while also having several different guys at the house anytime she is home. The daughter (the eldest of the two siblings) has been taking care of the house and acting like the head since she was roughly six years old, so her mentality is very mature for her age, so much in fact that her mother is constantly railing on her daughter about being an old hag. The reason the daughter had to quit school was because of her mother (I haven't worked out all the details as to why yet), and ever since she's been doing under-the-table jobs for neighbors to try and help make ends meet. By doing all these jobs the daughter is lucky if she can manage to bring in eighty dollars a month.
    As for the reason the boy was removed from the home, I haven't entirely decided on which course of action I wish to take as to the how, but I do have one idea that I'm considering:
    New neighbors move across the street from the family, and they have a young boy about the same age as the brother. The sister, concerned about her brother, let's the two boys become friends figuring it could do no harm. However, the parents that moved in start noticing that the brother isn't exactly taken care of to the standards of the world, and after witnessing an episode with the mother, they place a call into child services and have them do an investigation to have the boy removed from the home. Unfortunately, the child workers show up at a time when the mother is in the worst kind of shape, and in the middle of some rather unpleasant activities, thus she locks her son out of the house for several hours without a drink in some ninety degree weather. The sister at this time, is currently out job hunting and knows nothing about the preceedings until she comes home and finds her brother being placed in the back of a child worker's car with police on the scene.

    I could go into more detail then if need be, but this is the general idea of why the boy was taken away, what kind of living style is presented, and how the sister fairs.
    In all honesty, I'm reaching for the sister to gain custody of her little brother, something she'll do whatever it takes to accomplish. I would rather have it be believable and as accurate as possible though, thus all the questions. I'm willing to take into consideration the fact that the story might take a lot of work to reach the point I want it to, and I'm sure I could find a way around whatever may be needed. I'm kinda hoping to give a voice to the brother during the custody hearing, to plead his case (as they say) as to why he wishes to stay with his sister instead of being put in foster care.

    As always, any help is greatly appreciated. Also, I'm not sure which state/country this story is set in yet, so I'm hoping to hear any and all versions of the law to give me a better understanding of what I have to work with. Thanks.
     
  8. chicagoliz
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    chicagoliz Contributing Member Contributor

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    This would be a tough situation. The kids could go on for a while without child services knowing what is going on. But once they've been called and become involved, it would be unlikely that they would relinquish custody of the boy to his sister, particularly if she is living in the home where the mother is still living. He would still have an attorney appointed to represent his interests, and he could express his preference to live with his sister, but if the sister does not have another home, and if she can't show that she has some stability and some income, it would be unlikely for them to appoint him as his guardian. They would probably be willing to make some provision that the sister should have visitation rights, etc. to the boy.

    What could happen is that they boy could run away from his foster placement to be with the sister. If the case worker from the foster care system does not find out about this, the boy could live with her without them finding out, in certain situations. Case workers are notoriously overworked, so they're usually dealing with current fires. A case where nothing is really happening and nothing is brought to their attention could slip through the cracks. There are also some foster parents who essentially only become foster parents for the check and might not keep much of an eye on the child or care if he wants to run back to the sister. These are not the majority of foster parents, but they do exist.

    Basically, from what you've said so far, I don't think it's likely a court would actually grant custody to the sister. But there may be other ways for the boy to live with the sister. The sister could also potentially gain custody later if she were able to show some income and have a home that is separate from the mother.
     
  9. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    see what i wrote above, re what the sister would have to do/be to get custody...

    added to that now, is the complicating fact that they are not orphaned, have a living mother... the mother would most likely have to sign away her paternal rights, for the sister to be made the legal guardian of the child... and if the mother didn't, the boy could only be placed in a foster home... the girl could apply for foster parent status, but given her situation as you outlined it, that wouldn't be possible and she'd most likely have to be 21 or older in any case...

    i don't see any legal way you can have her become her brother's guardian untill all of the criteria i listed above and here are met...

    the only legal alternative i can see for her to stay with the boy is to have the two of them live with a relative...
     
  10. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    OP, you said that the sister would do "whatever it takes". What about blackmail or bribery to get the mother to sign? (I don't know where she'd get the money for bribery; maybe some sort of criminal activity.)
     
  11. SilverWolf0101
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    SilverWolf0101 Active Member

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    I've been trying to figure out several ends as to how the sister could gain custody of her brother legally, which is where all my questions are coming from.
    I know, in certain cases, depending on how bad the parent is (in this case the mother), the courts will forcefully take custody from them and place the child is foster care. I do admit that I don't know the legal terms behind this, or what kind of conditions have to be met for the courts to decide to take that course of action. It's something I'm considering working into the story, if at all possible.
    As for the sister, she's quite honestly not something you would expect from a troubled home. She has never once been in trouble with the law, never hung around with the wrong kids, mentally stronger than most people (though she doesn't think so), amazingly responsible, and so much more. The only thing that's really holding her back from having a real job is the fact no one will hire her because she doesn't have a high school diploma/GED, and no "professional" experience in the work zone, despite the fact she knows how to do practically everything out there. She's much to proud though to consider the worst possibilities for a job, aka prostitution, and can't see the point in wasting her life away on drugs or alcohol. In fact, her biggest goal in life is to avoid becoming her mother and gain enough money to have a stable living environment where she'll never have to spend sleepless nights worrying again.

    Okay, so I had two other ideas to work around the custody thing with the brother, but I'm not sure if they'll work legally, so I'm going to ask about them.
    Is there a grace period for the sister to accomplish everything she needs? I believe I saw in a movie once where the court appointed the one parent custody under the condition that they get their life straightened around and meet the requirements within six months of the court hearing. Is there actually something like this out there that I can put to work for the sister? Or is it just more Hollywood bull crap?
    Another idea I had is for a friend to try and gain custody of the brother for the sake of the sister. Since the sister and brother have no living relatives that they know of, except the mother, there's no one else the brother could go to besides foster care. So I was wondering if the close friend of the sister, an older male (somewhere between 23-28), who both financially set and can provide for the boy better then the sister could. I could go into more detail about the friend if need be, but I'm mostly wondering, can this male friend gain custody of the brother if he provides all the legal necessities? Or is there some legal standpoint that would prevent him from acting in favor of the sister/brother?
     
  12. chicagoliz
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    chicagoliz Contributing Member Contributor

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    First of all, it sounds to me that if the sister is that smart, strong, and determined, she would go ahead and get her GED. She can get that through studying mostly on her own, and would just need to pass the test. Even after having a GED, her employment prospects are still not the best, and likely later on she'd still need to get some sort of more advanced degree. But as a start, the GED should be very do-able, and from how you describe her, I don't see why she wouldn't.

    You are correct that the mother doesn't necessarily need to voluntarily sign away her parental rights. A court could forcibly sever them if the parent is really that bad. However, courts are very reluctant to do this. The bias here is toward family reunification, and the termination of parental rights is seen as a very draconian, very final step, so if there is even the slightest chance that the parent could ever redeem himself/herself, most courts are going to give them that chance. There is so much reluctance to terminate rights that it actually creates a big problem, in that there are many children who are in need of permanent care, but are not legally available for adoption. Frequently they can go between foster homes and the parental home, and especially if there is some sort of drug addiction situation, the parent can constantly fall off the wagon, and the child is then sent back into foster care, then the parent shows s/he is in some kind of program, is better for a while, etc.

    The laws will vary by state, and I don't have much experience in this particular field, but generally while there isn't some kind of hard and fast statute of limitations type of "grace" period, by which the sister would need to get custody, the length of time that alternative arrangements have been in place would be a factor in determining what is in the best interest of the boy. That is, if he's been in a foster home where he seems to be doing relatively well for 3 or 4 years, a court would be less eager to change that arrangement than if he had been there for a month. (Unless he was going back to the parent.)

    I suppose it could be theoretically possible for a judge to do something close to what you saw in the movie, IF there were some other person who would also look in on the boy, and they were all seeing a therapist, and the court received regular updates, and everyone agreed that this really was in the boy's best interest. But usually, in caring for the child, a court would keep the case open, want to see that the sister was getting everything she needs, and providing for regular visitation, before giving her custody, and then re-visit the issue in 6 months.

    The close friend is a possibility. He would have to become licensed to be a foster parent, which would entail taking some classes that are given by the state on parenting, etc., and having a home study, which would include things like a criminal background check, home visit to make sure the home is suitable for a child, letters of recommendation from people who have known him for at least several years -- I'm sure you could google "how to become a foster parent" or something like that and you'll find the specifics of what various states require. (Or google 'how to become a foster parent in New York," etc.) It would also help to show that this man would be the best guardian for the boy -- they have already bonded or have some sort of special relationship, etc.
     
  13. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    it wouldn't matter if there was, since the boy would still be in foster care during that period...

    that can work for a parent who is already the legal guardian of the child, but this is not the case for the sister...

    ...since the legal necessities would be the same and he's not already a qualified foster parent [and not likely to become one, as a single male], that's not a way out, sorry to say...

    see above... and if any conspiracy between him and the sister is discovered, they could both wind up in jail...
     
  14. chicagoliz
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    chicagoliz Contributing Member Contributor

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    That is not accurate. There are many single men who become foster parents.

    Also as far as the "conspiracy," I'm not really seeing that as far as this story. Unless the man and the sister are planning some sort of criminal act, there's no reason that someone already known to the sister and/or the boy could not become a foster parent.
     
  15. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    sorry, but in many places, single males have a very hard time becoming approved for foster parenting... which is why i said 'not likely' and did not say 'can't'...

    and, as for the 'conspiracy' bit, i said 'could'... not 'would'... for instance, if they falsified facts in order to get the child to be fostered by friends, that could well be at least a misdemeanor and could indeed be a felony, since the welfare of a child is at stake... giving false information in an official document could well be a form of perjury, which can be a jailable offense...

    i was simply covering all the potential stumbling blocks... and, sadly, have had altogether too much knowledge of child custody laws in both connecticut and kentucky, where i was doing all i could to help mothers keep their children from incestuous abuse by fathers, a grandfather and an uncle...
     
  16. Rebel Yellow
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    Rebel Yellow Active Member

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    Nowadays, social workers don't take custody of children that easily. If a family member is able and willing to take care of the child, he would get temporary custody before things go to court.

    From the cases I've seen, the parents will get several chances to make things right before they lose their child permanently. For example, if the mother is an alcoholic, she will be asked to go to rehab and upon completion, she will regain the custody.

    The social workers and the court act in the child's interest, which often translates into transferring custody to a close family member whenever possible.


    Your premise seems very interesting, but you should do a lot of research to make sure it works. Making the judge and social worker act in an insensible way could harm the credibility of your story.
     
  17. chicagoliz
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    chicagoliz Contributing Member Contributor

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    Yes, these laws do vary by state, and I'm sure in some of the more backward states there are some ridiculous rules. (There is a lot that is f*ed up about our foster care system.) However, many places actively encourage single men to foster (or adopt), sometimes finding that this is one of the best situations, particularly for teen boys. Apparently, NYC has even had some campaigns to recruit single men to become foster parents. Every state has a shortage of good foster parents. So as far as a fictional story, where the author can place the story anyplace he wants, and even has the option of placing it someplace that doesn't really exist or isn't named, it's not out of the question, or even all that far-fetched that this single male character the OP is contemplating could become the foster parent.
     
  18. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    rebel...
    that may be true in canada, where many laws and legal procedures make better sense than ours do 'down here'... but it's not the norm here, sad to say...
     
  19. Rebel Yellow
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    Rebel Yellow Active Member

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    Wow, it's pretty sad indeed. I know our legal system is different, but I assumed it wouldn't be that different for child custody.
     
  20. SilverWolf0101
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    SilverWolf0101 Active Member

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    In all honesty, I'd like to avoid letting the mother get custody of the boy, or even prove she can straighten herself out to get him. As it stands now, the mother is one of the main conflicts in the story, something the daughter/sister wishes to overcome, and completely rid herself of. I do, however, understand that I might be forced to consider the fact of working to all legal factors without completely pulling things out of thin air.
    If need be, I can try to find a way of adding the fact the sister looses the custody battle for her brother, but I'm honestly not sure how I would work the story from there, which is kind of why I'm pushing so hard for the sister to get custody of her brother. Again, this is just my personal preference and I'm well aware that it might have to be changed or rewritten.
    As for the male friend, I'm still considering the option of him going to get custody of the brother in favor of the sister. She of course, would know nothing about it until he actually does it. So considering that option I guess it brings in more legal questions about a single male trying to get custody of a child that he has no blood relation to.

    Doing things the legal way is hard and takes a lot of work x.x
     
  21. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    1. not being a blood relative, he wouldn't be able to be awarded legal 'permanent custody' of the boy, but only be allowed to take him on as a foster child, if he can acquire foster parenting status [which you need to know would take a very long time and much detailed investigation of his circumstances and character]... fostering has nothing to do with who is the child's legal guardian... it's a living arrangement only, for which the foster parent is paid a monthly stipend... a parent can still have legal parental rights for kids in foster care, but be kept from having them live with them for one reason or another...

    and many [most, actually] kids in foster care are shunted from one foster home to another, till they become of legal age and are tossed out of the system to fend for themselves...

    2. i don't see how it would be possible for the sister to not know where her brother is sent to live... or not be a part of the court process that determines where he's to go...
     
  22. Rebel Yellow
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    Rebel Yellow Active Member

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    It's hard work that will pay off. In my opinion, you have a real gem and I would buy your novel anytime.

    Have you considered paying a lawyer to get clear cut answers to your questions? Most of us here can speculate based on personal experience and common knowledge of the law, but a lawyer could help you with technicalities that could provide a better ethos.

    I realize that lawyers might be more expensive where you live, so if it's not an option, there are probably a couple of legal forums or websites with jurisprudence that could help.
     
  23. chicagoliz
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    chicagoliz Contributing Member Contributor

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    This would not be worth it. Most lawyers would not know how the child protective services and foster care systems work, unless they practiced extensively in this area. Those who do practice in that area would mostly be those who are employed by the state or possibly by some sort of non-profit agency, and would not have the time to give this sort of consultation, and could be prevented by doing so, particularly for money, by ethics or work rules that could apply.

    The better route would simply be to research the foster care system. There are a lot of forums and websites for people who are foster parents or are contemplating becoming one.
     
  24. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    and, if there's a social services/child welfare office in your area, you could ask a social worker if you can trade a free lunch/dinner for picking her brain re basic info on the subject...
     

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