Legal guardianship of niece/nephew...Please help :)

[joco]

Legal guardianship of niece/nephew in MO - Please help

Missouri:

My sister in law decided life wasn't worth living last month, and now my husband and I are trying to take legal guardianship of my niece and nephew. The children are 8 and 6. Neither father has ever been a part of the children's lives, in ANY way shape or form. The father of my 6 yr old nephew is unknown, we don't have a name or anything, but the father of my niece we DID find....he is in prison in a different state until at least 2011. We can't afford an attorney (I'm sure everyone's heard that one before) so we're trying to do this pro se. I have the guardianship paperwork that my county gave me and and actually helped me fill out, but after I filed it and addresses and everything were looked over we discovered we need to file in the county the kids lived in prior to the death of their mother, which is Jackson county. Jackson won't help me at all.

I have two main questions to start with:

first of all, a lawyer friend said that I should be able to change the header on the paperwork to say Jackson county so I don't have to fill all of it out again. Is this true?

Secondly, I have to publish an ad in a public notice newspaper for 4 consecutive weeks. I have no clue how that works. I know it's gotta be a public notice paper in Jackson county and I found a paper I'd like to use, but I don't know how to write the ad. The editor I spoke with said that usually the individual files the paperwork with the court then the court contacts the newspaper with the ad that needs to be run. Is this indeed how it works? Or do I need to file, then write an ad with the hearing date and everything, publish the ad, then send the affidavit of publication to the courthouse?

Sorry if this is somewhat confusing, I haven't gotten much sleep....I've been glued to the cpu and phone for the past month trying to deal with this stuff...Thanks!

 

[Ohiogal]

I have two main questions to start with:

first of all, a lawyer friend said that I should be able to change the header on the paperwork to say Jackson county so I don't have to fill all of it out again. Is this true?

Yep. Cross out whatever county and write Jackson in there.

Secondly, I have to publish an ad in a public notice newspaper for 4 consecutive weeks. I have no clue how that works. I know it's gotta be a public notice paper in Jackson county and I found a paper I'd like to use, but I don't know how to write the ad. The editor I spoke with said that usually the individual files the paperwork with the court then the court contacts the newspaper with the ad that needs to be run. Is this indeed how it works? Or do I need to file, then write an ad with the hearing date and everything, publish the ad, then send the affidavit of publication to the courthouse?

Get an attorney to handle JUST the service by publication issue. You cannot screw that up. And it is not necessarily just put in to ANY paper. The court most likely has requirements as to WHAT papers publication must take place. have you read the local rules? The rules of civil procedure?

 

[joco]

I didn't think about that! I didn't know I could just have the attorney take care of the publication part....Thanks! The only rules I've read state that it MUST be a newspaper in the county I'm filing in and the paper must be able to post public notices. I'll have to look into that further.

About changing the header....can I just hand-write the new county name??? Or should I use a computer to scan and edit the header??? The paperwork is already notarized and everything, and I'm not sure if using a cpu would nullify that or if the court needs the original copies with the notary stamp. It's not a raised stamp, just ink. I just don't want it looking too messy....I don't know how anal jackson county would be....Thanks again!

 

[joco]

Well, I contacted two attorneys before one told me that the county will take care of what needs to be published. I have to bring the filing fee and the publication fee to the courthouse when I file and they take it from there. Thanks for that advice, I've made more progress in one day than I have in the whole month I've been doing this!!!!

I do have a few more questions:

The filing fee...jackson county won't tell me how much I have to pay. I'm looking on their website and I don't see a category for guardianship. The closest thing is PATERNITY/HABEAS CORPUS - CHILD INV., and the fee for that is $173.00. Here's the website if someone would kindly feel so inclined to look:

http://www.16thcircuit.org/Forms/CVL/CvlSectionDoc/FEESHEET.pdf

I've already looked into what's necessary to get the first father served. I'm planning on sending him JUST the parent's consent to appointment sheet, and copy of the death certificate, and a letter requesting he sign the consent form. I don't believe I need to sent the whole packet of paperwork that needs to be filed, so like I said I'm only sending him the consent form that needs to be signed and notarized. I'm pretty sure (this is one of those blonde moments, bear with me) that I have to get that signed consent form back before I can file the petition for guardianship, correct? Or can I file the petition while I'm waiting on the consent form, then give the consent form to the courthouse when I get it back from him?

I think this should pretty much take care of it for me....I just had a few questions. Thanks so much!!!! If only I'd found this place 4 weeks ago....would have saved me a lot of screaming and head banging....

 

[CJane]

He needs to be SERVED with the ENTIRE filing. Preferably by process server, either private or you can utilize the sheriff's dept. OR you can use Certified REturn Receipt Mail.

You CANNOT just send him the consent form.

 

[Just Blue]

Joco...I am posting this here to make sure you see it...Do not respond to other members threads unless you can bake up your postings with statutes/case law from the state in question...

You wouldn't want someone to post irrelevant/not legal information on your thread...right??

Thanks

Blue

 

[summerdawn]

He needs to be SERVED with the ENTIRE filing. Preferably by process server, either private or you can utilize the sheriff's dept. OR you can use Certified REturn Receipt Mail.

You CANNOT just send him the consent form.

Is it possible to send something Certified Return Rceipt Mail when they are in prison? (sorry, just wondering.)

 

[joco]

Joco...I am posting this here to make sure you see it...Do not respond to other members threads unless you can bake up your postings with statutes/case law from the state in question...

You wouldn't want someone to post irrelevant/not legal information on your thread...right??

Thanks

Blue

Sorry....just trying to help...

 

[joco]

Okay, sending him the whole thing isn't that big of a deal....Just didn't want to send a bunch of paperwork if it wasn't necessary. So do I need to file it first then send him a copy requesting him to sign the consent form? I've already talked to the sherrif's dept in his county and got that straightened out, all I need to do is send the petition to them with the money order and they'll serve him. So right now I'm trying to get the order in which this has to happen down. This is how I'm thinking it's gotta go:

File the petition without the consent form but with the father's info.

Serve him a copy of the filed petition with a letter requesting that he sign the consent form.

Upon receipt of the return of service and signed consent form I'd go to the courthouse and add those two items to the petition.

Is that how it goes? Or am I way off???

 

[joco]

One more quick question....should I have him send the notarized consent form to me or to the courthouse? And can he keep the copy of the petition or should he send the whole thing back???

 

[CJane]

Do you KNOW FOR CERTAIN he's going to sign the consent form? I mean 100% absolutely no doubt whatsoever?

Are you also aware that VOLUNTARY guardianship can be revoked at any time?

 

[joco]

Do you KNOW FOR CERTAIN he's going to sign the consent form? I mean 100% absolutely no doubt whatsoever?

Are you also aware that VOLUNTARY guardianship can be revoked at any time?

The consent form is permanent...it specifically states:

I understand that I shall not have any right or claim to control or custody of such children or property. I understand that the appointment is permanent and will not be set aside merely at my request. I understand that the appointment will be set aside upon resignation of the fiduciary or upon proof that the fiducuary should be removed upon grounds as provided by law after notice and hearing to all persons interested in the welfare of the children.

So yeah, unless I'm misunderstanding my husband and I would have to step down or be proven unfit, or he would have to prove that he is fit to take over responsibility in 2011 when he's eligible for parole. Which would spark a whole different argument about the best interest of the child and blah blah blah...

Anyways, no, I'm not 100% sure he will consent. I'm hoping and praying he will, simply because he has never spoken to my niece, seen her, even been in the same state as her, since she was born and she's now 8. Not to mention the fact that he's in prison...He's eligible for parole in 2011 and his mandatory release date is 2014. I don't know what his charges are. I'm just really hoping that he would recognize that this is best for my niece...if he doesn't we'll have to take it from there....

 

[CJane]

Your husband needs to read this VERY thoroughly. Especially the bolded portions.


GuardiansandConservators (Guardians and Conservators Under Missouri Law)

Guardians and Conservators Under Missouri Law
What is a Guardian?

A guardian is a person who has been appointed by a court (usually the probate division of the circuit court) to have the care and custody of a minor or of an adult person who has been legally determined to be incapacitated.

What is a Conservator?

A conservator is a person or a corporation, such as a bank or trust company, appointed by a court (again, usually the probate division of the circuit court) to manage the property of a minor or of an adult person who has been legally determined to be disabled.

Who May be Appointed Guardian and Conservator?

The same person is usually appointed both guardian and conservator, although it is possible for different persons to be appointed with respect to the same minor or incapacitated and disabled adult. Parents have the first priority for appointment as conservators for the estates of their minor children, although such appointment is necessary only if the minor will receive property from some source other than his or her parents, such as the settlement of a personal injury action, an inheritance from a decedent's estate or some other source of property or income. Parents are the natural guardians for their children and need not be appointed as such by a court. However, if a minor has no parents, then the court may consider a guardian and conservator chosen by the minor if the minor is over the age of 14 years. The court may also consider a person named in the will of the last parent to die. In any event, the person appointed by the court must be suitable and qualified. If the minor is unable to choose a guardian and conservator and if the last surviving parent failed to designate a guardian and conservator in his or her will, then the court will appoint the most suitable person, usually an adult brother or sister or other close adult relative who is willing to serve.

< snip as it applies only to the incapacitated >

How are Guardianship and Conservatorship Proceedings Commenced?

Proceedings are commenced when a "petitioner" files an application for the appointment of a guardian and/or conservator in the probate division of the circuit court in the county in which the minor or alleged incapacitated or disabled person (the "respondent") resides. The petitioner and the respondent must be represented by attorneys. After application is filed, the court will set a date for a hearing. In the case of a minor, notice of the application must be served before the hearing: upon the minor (if over the age of 14 years); his or her parents and spouse, if any; anyone having care and custody of the minor; and any agency charged with supervision, control or custody. In the case of an alleged incapacitated or disabled person, notice of the application must be served: upon the respondent; his or her spouse, parents, children or other close relative over the age of 18 years; any person acting in a representative capacity with respect to any of the respondent's financial resources; and any person having care and custody of the respondent.

What are the Duties of a Guardian and a Conservator?

A guardian must always act in the best interest of the ward. The guardian of a minor is charged with responsibility for the minor's custody and control, and must act and make decisions relative to the minor's education, support and maintenance. A guardian of an incapacitated person must act and make decisions relative to the ward's care, treatment, shelter, education, support and maintenance. A guardian must assure that the ward resides in the least restrictive setting reasonably available and receives all medical care which he or she may need. A guardian may give necessary legal consent for the ward's treatment. However, a guardian may not admit the ward to a mental health facility for more than 30 days without a court order. A guardian must report to the court, at least annually, on the ward's physical condition.

A conservator, under the supervision of the court, is responsible for the protection and management of the protectee's financial estate. The conservator must properly and prudently invest the protectee's assets, apply such assets for the protectee's care and maintenance, and account for all funds received and expended on behalf of the protectee. Because of the strict accounting requirements imposed by law and the necessity of obtaining a court order authorizing most expenditures from the estate, the conservator must work closely with an attorney in order to administer the protectee's estate properly, no matter how large or small it may be.

Is the Conservator or Guardian Personally Liable for the Debts of the Protectee or Ward?

No, as long as the conservator indicates that he or she is acting on behalf of the protectee or ward in a representative capacity. In addition, neither the conservator nor the guardian assumes personal responsibility for the protectee's or ward's debts which may have been incurred by the protectee or ward prior to the court's determinations that he or she is an incapacitated or disabled person. Of course, unauthorized use of the protectee's estate or misappropriation of the protectee's property by either the conservator or guardian will likely require revocation of legal authority as conservator or guardian by the court and may result in personal liability for any harm or loss suffered by the estate.

How are Guardianship and Conservatorship Terminated?

Guardianship and conservatorship for a minor terminate when the minor reaches 18 years of age. If there was a conservatorship estate for the minor, the conservator prepares and files with the court a final accounting of the administration of the estate. Upon the court's approval of the final accounting, the conservator transfers the estate to the former protectee and, upon filing a final receipt with the court, the conservator and guardian are discharged by the court from any further responsibility.

<snip as it applies only to incapacitated persons >

 

[joco]

Thanks for that clip....there is one thing I don't get, though....if it says we must be represented by an attorney then how is it that so many people file without an attorney? Does the court just decide to ignore that little detail? My county not only sent me the forms I needed to fill out but also helped me fill them out. When I asked if it was completely necessary to have an attorney, they told me that many people successfully do it without them. Also, the clip you posted says the petition has to be filed in the county in which the minor resides, while I was told when I filed in my county that it had to be filed in Jackson county because the children resided there prior to Feb 19th.

Now I'm extremely confused....and there's no freakin way we can afford a lawyer! Legal aid says we're too rich for help, so what other option do I have? Leave the kids in legal limbo for the next 5 months while we try to save up the money? Our custody battle wasn't even this difficult, and we won full custody of my stepson from his mother!

 

[CJane]

Thanks for that clip....there is one thing I don't get, though....if it says we must be represented by an attorney then how is it that so many people file without an attorney? Does the court just decide to ignore that little detail? My county not only sent me the forms I needed to fill out but also helped me fill them out. When I asked if it was completely necessary to have an attorney, they told me that many people successfully do it without them. Also, the clip you posted says the petition has to be filed in the county in which the minor resides, while I was told when I filed in my county that it had to be filed in Jackson county because the children resided there prior to Feb 19th.

What county are you in?

You must file in Jackson county because that IS where the children legally reside - until they've lived in YOUR county for 6 months.

Your county should NOT have assisted in filling out the forms.

I suppose a court COULD ignore that 'little detail' but it leaves things pretty open to appeal should Dad decide he doesn't like it.

Also? The children have different fathers. EACH separate child, in this case, needs a SEPARATE motion filed. That's TWO filing fees. You have to 'serve' BOTH fathers (the one by publication, the other personally).

If the known father signs the guardianship papers, great. If not, you've got a court battle on your hands. And at that point ANY relative could throw their hat in the ring as the children aren't old enough to choose a guardian.

The unknown father is a whole nother ball of wax. In that case, I believe you'll HAVE to go to court and be appointed. And, again, ANY relative could toss their hat in the ring.

And no, as an aside, 'we' did not win custody. Your husband did.

Now I'm extremely confused....and there's no freakin way we can afford a lawyer! Legal aid says we're too rich for help, so what other option do I have? Leave the kids in legal limbo for the next 5 months while we try to save up the money? Our custody battle wasn't even this difficult, and we won full custody of my stepson from his mother![/QUOTE]