Mom wants me back w/her

Having been with my dad (PapaSmurf)for the last several years, will I have to go back to mom?
He had an accident in January, and just was told by Doctor that the anurisym (?) may finish him in the next who knows when. They're trying to fix it now, he's in the hospital, with a coma. Mother just found out Friday, when she called about the summer, I'll be 18 in a month, and want to go to school here in the fall. Mom(step) and he has done everything for me, and my brothers and sisters, and we don't want to be split up, Can she take my brother Christopher? He's 11 years old, and never was away from any of us. Can I be in court, and say anything to the judge? we haven't got papers yet, but am scared. Thanlks to all responses, and his friends here. John

[This message has been edited by Papa's oldest (edited June 12, 2000).]

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Papa's oldest:
[b] Having been with my dad (PapaSmurf)for the last several years, will I have to go back to mom?
He had an accident in January, and just was told by Doctor that the anurisym (?) may finish him in the next who knows when. They're trying to fix it now, he's in the hospital, with a coma. Mother just found out Friday, when she called about the summer, I'll be 18 in a month, and want to go to school here in the fall. Mom(step) and he has done everything for me, and my brothers and sisters, and we don't want to be split up, Can she take my brother Christopher? He's 11 years old, and never was away from any of us. Can I be in court, and say anything to the judge? we haven't got papers yet, but am scared. Thanlks to all responses, and his friends here. John[/b]<HR></BLOCKQUOTE>

My response:

Dear John:

This is indeed a major tragedy, and truly terrible news. I was wondering why PapaSmurf hasn't been contributing lately, believing he was merely on vacation, or taking a respite from the challenges he had so wonderfully tackled on this site. Your father has always shown wonderful insight, especially in the Family Law Board. He is very much missed, and I certainly hope that he will have a speedy recovery. My thoughts are with him, you and your entire family in these trying times. Please keep us informed of his progress.

However, your writing had a dual purpose - - that with your father's current situation, what is to become of you and your siblings? The law, in California, as it is in most States, concerning a custodial parent's mental incapacity or death is that if the custodial parent becomes mentally incapacitated or dies during a child's minority, the surviving parent immediately becomes entitled to sole custody, unless it is proved by clear and convincing evidence that such custody would not be in the child's best interests and would be detrimental to the child (i.e., Ca Fam Sec.3041 "dual findings" for nonparent custody order. The full panoply of parental rights reverts to the competent or surviving parent, including the right and responsibility to make all decisions relating to the child's health, education and welfare. [Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 223 Cal.Rptr. 707; In re Janette H. (1987) 196 Cal.App.3d 1421, 242 Cal.Rptr. 567; Schammel v. Schammel (1894) 105 Cal. 258, 38 P 729]

Therefore, the question of "custody modification" becomes moot with the custodial parent's mental incapacity or death; i.e., since there is now only one competent parent to assert parental rights, the original custody order itself is moot. (This of course assumes that only the parents were parties to the custody decree.)

There may be other alternatives if there is a grandparent living nearby who can care for you and your little brother; of course, a lot depends on your mother's final decision concerning custody, and even her abilities to do so. If you can, please see an attorney for further, and more specific advice.

Thank you for letting us know about your father, and again, please keep in contact on both of these issues.

IAAL



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Thanks IAAL, he always talked about you guys there. I read some of his posts, and some were not good posts for the questions, but I think it was because of his head.
Bad, if it means birth mother gets us. What can she gain? He wakes up and finds out we've been taken? Chris, I'm afraid will find somewhere else. Birth mother is in remission from cancer, would be hard on her too. Do love them both. Dad never took a dime from her, so she bought school clothes and things, thanks, no response needed, just will let yuo know what's happening, thanks for kind words. Must get some rest- John.