Custody issue-Mother died/Father prison

[sonyahw]

What is the name of your state? CA

My sister passed away in Jan 2005. Her 6 yr old daughter has been living with me since Feb 2005. Enrolled in school, sports and adjusting very well.
I've been married 16 yrs, own my home and have 2 children (14 & 11).
A month ago my sister's other daughter (14) who was incarcerated was released and was placed in my home. The 6 yr old's father is being released from prision and he wants to raise his daughter. My sister was never married to this man, my niece does not know him. He has no home, no source of income. I have been taking care of this child financially & emotionally.
Can he just come in and take her?? He is being selfish and not thinking what is best for her. What are my options???

 

[LdiJ]

What is the name of your state? CA

My sister passed away in Jan 2005. Her 6 yr old daughter has been living with me since Feb 2005. Enrolled in school, sports and adjusting very well.
I've been married 16 yrs, own my home and have 2 children (14 & 11).
A month ago my sister's other daughter (14) who was incarcerated was released and was placed in my home. The 6 yr old's father is being released from prision and he wants to raise his daughter. My sister was never married to this man, my niece does not know him. He has no home, no source of income. I have been taking care of this child financially & emotionally.
Can he just come in and take her?? He is being selfish and not thinking what is best for her. What are my options???

You need to get an attorney. You are going to have to file for custody. You may or may not win depending on the nature of dad's crimes. The fact that your niece doesn't even know him is a factor in your favor...but he is still the father with constitutional rights.

 

[Zephyr]

do you currently have legal guardianship?
has paternity been established?
if so what type of custody does dad have?

 

[sonyahw]

Child Custody-Mother deceased/Father prison

I don't have guardianship, I am only the maternal aunt she was placed with me through social services.

He is on the birth certificate and am 100% certain he is the father.
No custody rights have been established. He entered prison when she
was 3 months old. They never married.
He is about 47 yrs old and has spent about 26 years in and out of prison
since he was a juvenial for crimes such as Bank Robbery and Drug Sales/Possession. He has done both Federal and State time.

Am currently seeking an attorney.

 

[Zephyr]

well he does not have visitation or custody rights until he asks for them from the court, he can not just come and take the child

 

[VeronicaGia]

well he does not have visitation or custody rights until he asks for them from the court, he can not just come and take the child

What? He is the father. He does not need to get custody, the other parent is deceased. This aunt does not have custody, custody reverts to the biological parent. Paternity has been established. She is not the parent of this child, it would be no different if I had this child, the child isn't mine, it's his!!! He can "just come and take the child" unless a court orders that the child remain in the custody of the aunt.

 

[LdiJ]

What? He is the father. He does not need to get custody, the other parent is deceased. This aunt does not have custody, custody reverts to the biological parent. Paternity has been established. She is not the parent of this child, it would be no different if I had this child, the child isn't mine, it's his!!! He can "just come and take the child" unless a court orders that the child remain in the custody of the aunt.

Actually...I disagree in this case. Social Services placed the child with the aunt. Therefore I think that he would have to file for custody.

 

[VeronicaGia]

Actually...I disagree in this case. Social Services placed the child with the aunt. Therefore I think that he would have to file for custody.

Social services does not equal a court order. Social services could have placed the child with her strictly since dad is in jail.

Look, I know someone is CA who was in prison. He and his ex had a child Her parental rights were terminated. He was informed, while in prison that he now had custody of the child but the child was placed in foster care. While his time wasn't long, thankfully he looked at the whole situation, met the foster parents who wanted to adopt his child and decided his prospects directly out of prison wouldn't be good for the child. He's doing fine now (great job, own apartment), but who knew that then? He gave the child up for adoption to the loving foster parents and still has a relationship with his daughter.

The point is, they couldn't do anything without him. He had custody, but was simply unable to take care of the child from prison. If he had decided to go another way, he could have collected his child and left, since this was simply social services placing the child with another family.

Our poster needs an attorney, but hopefully our prisoner in this case will do the right thing by this child.

 

[sonyahw]

Thank you all for your advise.

I spoke to an attorney. It's a matter of how much fight, time and money I want to put into this. Social Services cannot do anything as she is not abused or neglected (yet)

It's not like I want to keep the child from her father. I don't want to fight with him as if I don't win the case I still want to be a part of her life. His brother is an attorney so that wouldn't be a problem for him to fight me.
I don't want anomosity with him so that if it doesn't work with him he will feel like he could bring her back. I'm going to try to keep the lines of communication open and I'm hoping he will let her stay until his life is in order and he is prepared to raise her. I'm hoping he will do what is best for the child.