What constitutes neglect on the moms part?

[AuntMom]

My 8 y/o neice lives with myself and my husband in the state of Tennessee and has for some time. (approx 2 full years) Her father is my brother and has only visitation rights which he does not use. He very seldom sees the child and she has very little desire to see him either. The mother is my ex-sister-in-law and she is the custodial parent. I have kept written records since January 1999 of where my neice has stayed every night. Out of 597 days, she has stayed all night with her mother 40 nights and with her father 14 nights. The rest of the time she has stayed with me. Her mother has gone up to almost 3 months at a time without contacting the child at all. As of today, the last time she spoke to my neice was also the last time she actually saw her, on July 6th. To my knowledge she has called only one other time and left a msg on our machine....that was on August 8th. At the present time, I do not even know how to reach the mother. She no longer has a telephone at home, I do not know where she lives, and she was fired from her job on June 23rd. The last phone call from her was from a boat dock in a nearby town. My husband and I love this child dearly and have supported her most of her life and that support is now and has been for some time 100%. We receive no support from either parent. Since her mother is no longer employed, my neice does not even have medical insurance coverage. I have inquired about my insurance coverage, however, they will not allow me to add her unless I have custody. The above information is merely the tip of the iceberg in this very sad case however, I think you can see the pattern. I just wonder what it takes to prove neglect and if I would even have a small chance in obtaining custody of my neice? I don't believe my brother would object at all to my adoption of my neice, however, the mother is a different story! I have considered trying to talk with the mother especially in regard to obtaining medical insurance; however, she is very high-strung and feels threatened and just will simply not listen to reason! However, I had still planned to try this approach the next time she called. She, however has never called again and I have no idea how to reach her now. Up to this point, I have been content with things as they are because at least I have my neice with me and that is by far the most important factor. However, she desperately needs medical insurance and frankly I desperately want permanent custody so that I can rest assured that neither of her parents can waltz back in and take her away! My neice has personally said that she wants to live with us, not her mother. However, she is only 8 and I believe she has to be 11 in our state in order to have a voice. So, I am at a loss and do not know where to turn next? Do you have any suggestions? Thank you for your time.

 

[LegalBeagle]

I was going to start this by saying it will be easy.. but nothing is easy.

There are two things you need to do.. First of all retain an attorney and file for physical custody of the child. With all the evidence/records that you have it should not be a big fight and a judge will see in a heartbeat that it is in the best interest of the child. Since you do not know where the mother is then you can not have her served. You attorney will explain what to do about this. If she does not show up for the court date then even better.

The second thing is optional and may depend on how much money you have. That is to file an ex-parte motion to grant you immediate temporary custody. You can site the lack of insurance as a reason among others. There is another reason for this, the moment the mother find out, she can come and take the child and be gone. She may not want the child but she may do it anyway. This is why talking to her first might not be a good idea.

Be warned though.. even if you win custody, it only takes for her to get back on her feet, get a stable home and job for her to petition the court to get custody back.. and bio parents always have a slightly better hand than others in custody cases where both situations are equal.

Call around your local attorneys NOW.. you generally get a few moments few consultation.


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Psst.. I am not an attorney, and even if I was, I would not tell you. Which technically could mean I am an attorney, but I would not tell you either way. What I am giving you is not legal advice in anyway. For proper legal advice, retain a person who openly admits they are an attorney.

 

[AuntMom]

Thanks LB for the info! You are one of the first to actually give me any hope! At one point in all of this I had talked briefly with an attorney/friend who basically told me that I may be able to obtain temp custody but that the main goal of the court was to reunite the child with the mother. I do understand that if I were granted temp custody that the mother could still come back and obtain custody again upon promising to "do better." However, this mother really does not want the child and probably never has wanted her. I really do not think she has the knowledge or the stamina to even pursue the matter to be honest. Additionally she does not have the funds to obtain an attorney for herself and evidently she is too proud (or ashamed...I'm not sure which)to seek free legal advice. I feel quite sure that she will not attempt to obtain legal aid because at one point her ex-husband (my brother) was working on a job that paid him almost $25,000 per year and she did not take him to court for child support! I don't think he ever paid child support. I had even advised the mother to obtain legal aid, take him to court and have them make him pay child support through the court! She never did this.....of course we were supporting the child so she didn't really need the funds. Anyway, that is why I don't think she will pursue the matter by obtain cousel for herself. So anyway, according to your reply, I should probably act fast and get the ball rolling and get an attorney and file first for immediate temporary custody? Then continue with the other motion and file for permanent custody? One other question I have that has troubled me tremendously: Will any of this cause Human Services to become involved in the case? I know we are a fit family and have a fit home and life, however, I have just heard so many horror stories when DHS has become involved in a case and I am just terrified that if they get involved that I may lose my child forever! My husband seems to think that DHS does not get involved unless there is a reason, such as abuse, or perhaps the child has no other family etc. My fear however, is that somehow DHS will become involved, find the mother and begin the process for/with her. Sorry to be so clueless about this stuff.....I just didn't want to waste time, energy, emotion and funds with an attorney if the end result would be useless! Your info is very helpful! Hope to hear from you again soon.

 

[LegalBeagle]

Hope ? That is easy.. next week you will win the lottery as well !

I will answer this properly tomorrow after this tired old man has had some beauty sleep ..

 

[LegalBeagle]

Your first step is to find a decent attorney. Call several and discuss the case with them all. You generally get a free consultation so spend a day calling around. Pick the attorney you feel most comfortable with and who has convienced you that you have a very good chance and looking forward to working with you etc etc etc...

Discuss with each attorney both the immediate temporary custody and the proper custody filing. They may tell you the ex-parte motion is not needed as the court date can be obtain quickly etc.

This is all in the best interest of the child and it does not sound like you are going to have much resistance from either parent. I will give you some other advice, if you start asking for child support, you will be surprised how interested the parents become in custody so if you can afford to support the child without their money, it will be easier in the long run to not bring it up at all.

No idea about DHS.. but if they do, you sound like you have nothing to worry about and they will probably support your course of action. Just keep that sink clean ! (first think they look at when they come into your home)

Final point.. your documentation is excellent and will go a long way to winning custody.. keep it up ! even with custody the battle is not over so continue to document everything.. you may need it again in a few years...


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Psst.. I am not an attorney, and even if I was, I would not tell you. Which technically could mean I am an attorney, but I would not tell you either way. What I am giving you is not legal advice in anyway. For proper legal advice, retain a person who openly admits they are an attorney.

 

[AuntMom]

Thanks for all of your insight LegalB. I plan to begin my search first thing on Tuesday morning. Oh, and I do not intend to ask for child support.......are you kidding? Neither of her parents have a clue about having a child let alone taking the responsibility for one! Again, thanks for the info and encouragement.

 

[LegalBeagle]

Good luck.. and please come back and let us know how it goes.. all the advice in the world can not compare to actual experience.

 

[AuntMom]

Hi Legal:

Quick update: I called a few attorney offices today....however...its kinda tuff to get past the "call-screener" receptionists with the story....know what I mean? Are there any "catch phrases" I should stay away from...or perhaps that I should be using in order to perk attention? Evidently child custody cases are not one of the "favs" of our legal boys in this area! (naturally!) However, I'll not be defeated! I'll continue to call tomorrow! Still haven't heard from the mother either! My neice has successfully started third grade and all is well for now! Thanks again.

 

[used for 9 years]

Just wanted to let you know that you are not alone out there! I have had custody of my 2 nephews for nine years. Their mother just took off one day never to be heard from again until 8 years later. Their father is my brother and has been around most of the time. He did not help financialy, but at least his children know him. The first thing that I did was worry about medical issues also. Because what if something happens? You could be financialy wiped out by a medical issue. I went to social services and filed for Aid to Dependent Children. I recieved free medical help for them. But as it turns out did not need it. I gained custody by filing a pettition for custody at the Juvenile and Domestic court for my county. I did not have a lawyer, and do not have one to this day. I should have gotten one early on. Maybe some of the things we are going through now would not have happen. It really is hard to believe that someone can abandon their children for 8 years and still have any rights at all. So maybe you should have that taken care of legaly early while you still have a chance. So you and your child will not have to endure what we have had to endure this past year, that the bio mom decided for some reason to come a calling.

 

[LegalBeagle]

You should always use an attorney when dealing with child custody..

The bio parents have rights up until the children are 18.. and it is distrubing when they can disappear for years and then come back and claim back their rights. The only thing in your favor is that the longer you have them, the harder it will be for them to get a complete change of custody.. but they will always be able to get visitation.

 

[AuntMom]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by used for 9 years:
Just wanted to let you know that you are not alone out there! I have had custody of my 2 nephews for nine years. Their mother just took off one day never to be heard from again until 8 years later. Their father is my brother and has been around most of the time. He did not help financialy, but at least his children know him. The first thing that I did was worry about medical issues also. Because what if something happens? You could be financialy wiped out by a medical issue. I went to social services and filed for Aid to Dependent Children. I recieved free medical help for them. But as it turns out did not need it. I gained custody by filing a pettition for custody at the Juvenile and Domestic court for my county. I did not have a lawyer, and do not have one to this day. I should have gotten one early on. Maybe some of the things we are going through now would not have happen. It really is hard to believe that someone can abandon their children for 8 years and still have any rights at all. So maybe you should have that taken care of legaly early while you still have a chance. So you and your child will not have to endure what we have had to endure this past year, that the bio mom decided for some reason to come a calling.<HR></BLOCKQUOTE>
Hi! Thanks for the info! I was beginning to think there was absolutely no one else out there in a similiar situation! I do actually have an appointment with a local attorney now, however, it is not until the 28th of this month. However, the mother did call our house tonight (we were at a church meeting) and left a message on the answering machine. I hope this doesn't mean she is back to haunt us! I recorded the message on tape, dated it with todays date and time and noted that the call was made from an "unknown name and unknown number". I guess perhaps I should call the attorney and see if I can get worked in sooner. I'm sorry you are having troubles now, best of luck to you and the kids. Thanks!

 

[AuntMom]

Dear Legal:
Did you read my reply to "user for 9 years"? The mother called our house tonite and left a msg on the a/m for my neice. Said she had been trying to get in touch with her for 2 weeks. (however she has never lft a msg before) I recorded the message on a seperate tape, dated it with todays date and time that it came in with a notation of the caller id "unknown name and unknown number". She also failed to leave a number where she could be reached. I have an appointment w/an attorney on 9/28, should I call and beg them to let me come in sooner since she has called? I do believe I have a good case so I don't want to mess up my chance now but letting her mother know what I am up to. Should I just get another atty that I can talk with sooner? The one I have the appt with is the one I told you I had spoken to briefly several months ago...so she is aware of the situation (sort of) We didn't really have a consultation, I just asked her if I had enough to go on at that time. So....what do you think? Do I need to take action NOW because of the call today or wait til the 28th? Thanks for your help!

 

[LegalBeagle]

I am surprised that you have struggled to find an attorney and also that the one you have found has given you an appointment of 3 weeks away.

Continue to call around and speak to other attorneys. Most will give you a 5-20 minute free consultation. If you can get an appointment sooner with the one you have found then all the better..

Only you can judge what the mother is going to do.. she may not be the slightest bit interested and not want to take the child.. you just don't know.. You should have a better idea once you speak to her.. That temporary order is fairly important though as she could show up tomorrow, take the child and there would be nothing you could do about it..



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Psst.. I am not an attorney, and even if I was, I would not tell you. What I am giving you is not legal advice in anyway. For proper legal advice, retain a person who openly admits they are an attorney.