3rd party custody

[uncledrewishere]

What is the name of your state (only U.S. law)? North Carolina

Good evening.

I have read the sticky containing the rules and will do my best to abide, please advise me if I stray.

Quick history:

My wife's brother and his GF had a child 5 years ago. They asked us to care for the child due to some pending criminal charges. We agreed to take the child on a temporary basis, meaning a few months. However, the few months turned into years.

The child returned home, however, the parents split up and are again facing criminal charges. The child returned to us, and after a year of him stay with us, the child's father decided that he was going to send the child to California. We were opposed, as this would take the child away from everyone he knew and all of his friends, and out of the home that he had lived in for 4 and a half years (at that point).

We pursued 3rd party custody. The criminal charges have not yet been heard, so at this point it is only *likely* that the father will be going to jail. Mother is in the same situation, and will likely be jailed as well.

At our hearing, the Judge heard some of the testimony, and saw some of the evidence, and urged my brother-in-law to come to an agreement with the intervenors (my wife and I). The Judge said that it would be in my brother-in-law's best interest to work with us instead of having the Judge make a ruling.

My wife and I made an offer, and my BIL agreed to and signed the consent order, making a few requests of his own, which we agreed to.

The short version of the consent order goes as follows:

My wife and I enjoy joint legal custody with my BIL. Any disputes that we cannot resolve ourselves will be decided by a court appointed mediator.

He has primary physical, and we have secondary physical.

In the event of BIL's incarceration, primary physical reverts to us.

During the school year, the child is to attend the afterschool program that my wife is employed at.

At BIL's request, the mother of the child has no custodial rights, nor visitation rights, but does retain the right to petition the court to have visitation established.

My wife and I enjoy a standard every other weekend visitation, with some visits during the week.

The consent order does NOT in any way provide any party with any type of child support.


Now, the problem. BIL has decided that since we have joint custody, we must share in the daycare expenses. We have OFFERED to help with the cost of summer childcare, and believe with no order in place, any help we offer will be on our terms and that we are entitled to a receipt of any monies offered. BIL only works 15 hours a week, much it during a time when we could provide the childcare for free, however, we do not have a first rights of refusal clause, so our hands are tied there. I do want to help with the daycare expenses, but in doing so I want to ensure that the child will be placed in a good daycare center.

Also, BIL has told us that once he is finished with his jail time (as much as 3 years), he will be going back to court and having us removed from the custody, and preventing us any further contact with the child.

At this point, we no longer have a lawyer, and cannot afford to retain a new one. 3rd party custody have proven to be extremely expensive and our savings are gone.

For the specific questions:

We offered to pay about half of the daycare expenses at a center that we all approve of, and that we would be provided with receipts. BIL insists that we pay 80% (he is basing this on the mutual income of my wife and I compared to his 15 hour a week employment), that since he has primary physical custody, we have no input on a daycare facility, and that we have no right to request any receipts. Are we correct in our position?

We currently provide much of the support for the child, and are keeping receipts for all items purchased. When we purchase something that the child needs to take home (ie, school supplies, clothing, etc), we keep the receipts for our records. However, BIL is now *requiring* that we hand over the receipts to him. I am willing to give him a signed by me photocopy of the reciepts. Am a required to provide him with anything regarding what I purchase?

BIL has provided us with a "List of rules" that we are to "obey" when we have our court ordered visitation. Child is not to stay up past 8 pm (child goes to bed a 10 when at his fathers) , child should have to drink only water during mealtime (child lives off Mountain Dew while at his fathers), child may not eat candy, cake or cookies while in our care (he has these things when he is with his father) and child may not watch TV while at our house (child is allowed to watch TV at his father's). I threw the rules in the garbage. It's my home, my rules and my visitation (my=my wife and I). Is my position correct on this?

and finally. What can I do to prepare for the coming custody modification that BIL is planning? It was shown in court that child's grade show a significant improvement while wife and I are included in his life. It was proven in court that this child, my wife and I share a parent child like relationship, (this is the major reason why we were allowed to intervene in the first place).

thanks
Uncle Drew

 

[Ohiogal]

So did mom agree with any of this or not? If she didn't agree, then you don't have an agreement. You have a hope.

 

[uncledrewishere]

On all but one court date, the mother was served and properly notified, but did not show up for court. She appeared ONLY for the first appearance. Her reason to not come in was to avoid arrest.

The Judge noted her continued unresponsiveness in his notes on the consent order. When he was speaking to us, as we finalized everything, he said that he would not have been comfortable or willing to sign anything granting her any type of custody or visitation at this point.

I'll quote the most recent order statement regarding the mother.

14. that as to custody with the defendant (mother's name), this order nullifies and voids the right of joint custody to the minor child and no visitation until such time as (mother's name) files the appropriate motion to modify and appears in court.
15. That (mother's name) was not in court at the call of this matter despite being properly noticed for this hearing and having participated on one previous hearing after the intervenors filed their modification.

Following the body of the order there is another section with the following checked:

(a) with the signing of this Memorandum by the presiding Judge, this memorandum shall become a judgement/order of the court and shall be deemed entered pursuant to Rule 58 of the North Carolina Rules of Civil Procedure on the date filed with the clerk.
(b) the provisions of this Memorandum are fair and reasonable and each party has had ample opportunity to obtain legal advice concerning the legal effect and terms of this Memorandum
(c) this Memorandum is enforcable by the contempt powers of the court should any party not comply with its terms

Then the following paragraph:

Prior to accepting the stipulated agreement of the parties, the undersigned judge read the terms of the above stipulations and agreements of the parties, and made careful inquiry of them with the regards to the voluntary nature of their agreement and their understanding thereof. The court explained to the parties the legal effect of their stipulations and agreements and determined that the parties understood the legal effect and terms of the agreement and stipulations.

Then a section for commentary from the Judge:

Noted that (mother's name) refused to attend and participate in any hearings on this matter, therefore the matter was heard and settled in her absence.

Then is was signed and dated by the judge.

---------------------------

I'm not being smart with you, but if the Judge agreed to it and signed the document, doesnt that hold more weight that the mother who refused to have any thing to do with her child?

 

[Ohiogal]

The judge's order was good. From the sounds of things in your first post, mom was not served or anything -- it was though you concentrated only on your brother. The fact that she was served and chose not to attend changes things and therefore the judge could proceed.

 

[uncledrewishere]

The judge's order was good. From the sounds of things in your first post, mom was not served or anything -- it was though you concentrated only on your brother. The fact that she was served and chose not to attend changes things and therefore the judge could proceed.

I apologize for the confusion. I was trying to be concise in my wording. Thank you for clearing that up!

I hope that someone will have an answer to my questions.

 

[LdiJ]

What is the name of your state (only U.S. law)? North Carolina

Good evening.

I have read the sticky containing the rules and will do my best to abide, please advise me if I stray.

Quick history:

My wife's brother and his GF had a child 5 years ago. They asked us to care for the child due to some pending criminal charges. We agreed to take the child on a temporary basis, meaning a few months. However, the few months turned into years.

The child returned home, however, the parents split up and are again facing criminal charges. The child returned to us, and after a year of him stay with us, the child's father decided that he was going to send the child to California. We were opposed, as this would take the child away from everyone he knew and all of his friends, and out of the home that he had lived in for 4 and a half years (at that point).

We pursued 3rd party custody. The criminal charges have not yet been heard, so at this point it is only *likely* that the father will be going to jail. Mother is in the same situation, and will likely be jailed as well.

At our hearing, the Judge heard some of the testimony, and saw some of the evidence, and urged my brother-in-law to come to an agreement with the intervenors (my wife and I). The Judge said that it would be in my brother-in-law's best interest to work with us instead of having the Judge make a ruling.

My wife and I made an offer, and my BIL agreed to and signed the consent order, making a few requests of his own, which we agreed to.

The short version of the consent order goes as follows:

My wife and I enjoy joint legal custody with my BIL. Any disputes that we cannot resolve ourselves will be decided by a court appointed mediator.

He has primary physical, and we have secondary physical.

In the event of BIL's incarceration, primary physical reverts to us.

During the school year, the child is to attend the afterschool program that my wife is employed at.

At BIL's request, the mother of the child has no custodial rights, nor visitation rights, but does retain the right to petition the court to have visitation established.

My wife and I enjoy a standard every other weekend visitation, with some visits during the week.

The consent order does NOT in any way provide any party with any type of child support.


Now, the problem. BIL has decided that since we have joint custody, we must share in the daycare expenses. We have OFFERED to help with the cost of summer childcare, and believe with no order in place, any help we offer will be on our terms and that we are entitled to a receipt of any monies offered. BIL only works 15 hours a week, much it during a time when we could provide the childcare for free, however, we do not have a first rights of refusal clause, so our hands are tied there. I do want to help with the daycare expenses, but in doing so I want to ensure that the child will be placed in a good daycare center.

Also, BIL has told us that once he is finished with his jail time (as much as 3 years), he will be going back to court and having us removed from the custody, and preventing us any further contact with the child.

At this point, we no longer have a lawyer, and cannot afford to retain a new one. 3rd party custody have proven to be extremely expensive and our savings are gone.

For the specific questions:

We offered to pay about half of the daycare expenses at a center that we all approve of, and that we would be provided with receipts. BIL insists that we pay 80% (he is basing this on the mutual income of my wife and I compared to his 15 hour a week employment), that since he has primary physical custody, we have no input on a daycare facility, and that we have no right to request any receipts. Are we correct in our position?

You are not required to pay any of the cost of daycare. Its generous that you are willing to help at all.

We currently provide much of the support for the child, and are keeping receipts for all items purchased. When we purchase something that the child needs to take home (ie, school supplies, clothing, etc), we keep the receipts for our records. However, BIL is now *requiring* that we hand over the receipts to him. I am willing to give him a signed by me photocopy of the reciepts. Am a required to provide him with anything regarding what I purchase?

Again, you are not required to pay for anything and its generous that you are. You are certainly not required to give dad the receipts.

BIL has provided us with a "List of rules" that we are to "obey" when we have our court ordered visitation. Child is not to stay up past 8 pm (child goes to bed a 10 when at his fathers) , child should have to drink only water during mealtime (child lives off Mountain Dew while at his fathers), child may not eat candy, cake or cookies while in our care (he has these things when he is with his father) and child may not watch TV while at our house (child is allowed to watch TV at his father's). I threw the rules in the garbage. It's my home, my rules and my visitation (my=my wife and I). Is my position correct on this?

Yes, you are correct on this. Dad's rules are ridiculous.

and finally. What can I do to prepare for the coming custody modification that BIL is planning? It was shown in court that child's grade show a significant improvement while wife and I are included in his life. It was proven in court that this child, my wife and I share a parent child like relationship, (this is the major reason why we were allowed to intervene in the first place).

thanks
Uncle Drew

You need do nothing to prepare. You have been the child's de facto parents for most of the child's life. There is little to no chance that dad could be successful at all with such a modification.

 

[Proserpina]

In my opinion, this custody side of this falls down to one thing, and one thing only - the question of fitness.

The Price court concluded that, when a parent loses protected status, or never obtains protected
status, application of the best interest standard in a custody dispute with a nonparent does not
violate due process. However, the court also stated that when a parent enjoys protected status,
“application of the ‘best interest of the child standard’ in a custody dispute with a non-parent
would offend the Due Process Clause.”

Note the bolded. From the oodles of case-law, barring Dad being deemed unfit, looks like "best interests" is out of the window, thus protecting the rights of the parent. Of course it's not absolute (these things never are), but I wouldn't be holding out for a ticker parade just yet. Modification is also possible - but the criteria are not uniform.

(the entire thing and more, is here: http://sogpubs.unc.edu//electronicversions/pdfs/flb25.pdf? )

 

[LdiJ]

In my opinion, this custody side of this falls down to one thing, and one thing only - the question of fitness.



Note the bolded. From the oodles of case-law, barring Dad being deemed unfit, looks like "best interests" is out of the window, thus protecting the rights of the parent. Of course it's not absolute (these things never are), but I wouldn't be holding out for a ticker parade just yet. Modification is also possible - but the criteria are not uniform.

(the entire thing and more, is here: http://sogpubs.unc.edu//electronicversions/pdfs/flb25.pdf? )

Here is the deal though Pro, and where the judge got clever...

Dad willingly (and mom by default) gave joint custody to the OP. The judge did not rule on the merits of the case. The judge brokered an agreement. Therefore, now a change in the circumstances of the child would be required in order to take away that joint custody. Dad getting out of jail after three years would not be a change in the child's circumstances.

I suspect that had dad stood his ground in the original custody case (refused to come to an agreement) that the OP would NOT have received any form of custody because dad would have been considered to have had protected status. However, that isn't what happened. An agreement happened.

 

[Proserpina]

Here is the deal though Pro, and where the judge got clever...

Dad willingly (and mom by default) gave joint custody to the OP. The judge did not rule on the merits of the case. The judge brokered an agreement. Therefore, now a change in the circumstances of the child would be required in order to take away that joint custody. Dad getting out of jail after three years would not be a change in the child's circumstances.

I suspect that had dad stood his ground in the original custody case (refused to come to an agreement) that the OP would NOT have received any form of custody because dad would have been considered to have had protected status. However, that isn't what happened. An agreement happened.

Dad's not in jail yet though.

If he does end up incarcerated, he's actually at risk of being TPRd involuntarily, and paving the way for OP to adopt if that's what is needed.

But if he doesn't? I don't see it working well for OP.

On a very personal level, it saddens me greatly. You know where I stand with regards to GPV, but when a third party has essentially raised the child I believe it's rarely in the child's best interest to be taken from his "family". Much as there are times when a parent is honest enough to know that they cannot raise the child and places the child for adoption (some people view this is "giving up" or "not caring" - I call it "selfless") , there are times when 3rd party custody is actually in the child's best interest.

 

[Ohiogal]

Here is the deal though Pro, and where the judge got clever...

Dad willingly (and mom by default) gave joint custody to the OP. The judge did not rule on the merits of the case. The judge brokered an agreement. Therefore, now a change in the circumstances of the child would be required in order to take away that joint custody. Dad getting out of jail after three years would not be a change in the child's circumstances.

I suspect that had dad stood his ground in the original custody case (refused to come to an agreement) that the OP would NOT have received any form of custody because dad would have been considered to have had protected status. However, that isn't what happened. An agreement happened.

Are you sure a change in circumstance is required for dad to get custody back? In some states it is not. In Ohio for instance it is not if it is a shared "custody" or "shared parenting" plan.

 

[Ohiogal]

Dad's not in jail yet though.

If he does end up incarcerated, he's actually at risk of being TPRd involuntarily, and paving the way for OP to adopt if that's what is needed.

But if he doesn't? I don't see it working well for OP.

On a very personal level, it saddens me greatly. You know where I stand with regards to GPV, but when a third party has essentially raised the child I believe it's rarely in the child's best interest to be taken from his "family". Much as there are times when a parent is honest enough to know that they cannot raise the child and places the child for adoption (some people view this is "giving up" or "not caring" - I call it "selfless") , there are times when 3rd party custody is actually in the child's best interest.

How is he at risk at being TPRd involuntarily when he is in jail? Are you sure someone can do that other than the state during a CSB case?

 

[Proserpina]

NC allows the parent or other with legal custody to file and get things rolling:

http://www.nccourts.org/Citizens/Gal/Documents/Manual/chapter04.pdf

A petition to terminate parental rights may only be filed by

1. Either parent seeking termination of the other parent.

2. Any person judicially appointed as guardian of the person of the child

Granted, the grounds may be somewhat "iffy" (there's no clear "yes" or "no" whether or not incarceration is grounds enough, or whether it does or does not constitute abandonment), but there we have it.

 

[Ohiogal]

NC allows the parent or other with legal custody to file and get things rolling:

http://www.nccourts.org/Citizens/Gal/Documents/Manual/chapter04.pdf




Granted, the grounds may be somewhat "iffy" (there's no clear "yes" or "no" whether or not incarceration is grounds enough, or whether it does or does not constitute abandonment), but there we have it.

Thank you. My questions were sincere as I didn't have time to look for it and I know that it has been stated before regarding TPR and found to be reserved ONLY for the state/county. And joint legal to terminate doesn't ALWAYS need a change in circumstance in order to terminate.

 

[uncledrewishere]

Thank you, Ldij, for taking time to answer my questions.

And thank you for the links. Too much reading for one setting, but I did skim over it quickly.

Thank you as well, Proserpina and Ohio Gal for your discussion. It's a little over my head, but I would like to join and perhaps learn a little. Forgive me, I do not know how to use the multi-quote feature.

The best interest of the child was mentioned. It was my understanding that upon the granting of my motion to intervene, custody matters would be heard with consideration given to us as equal to parents, and that due to the equal standing between the defendant (mother), plaintiff (father) and the intervenors (us), rulings would be made in the best interest of the child.

Interesting that one would quote the Price case. It was part of the case law used for our side while in court.

I saw some commentary concerning the protected status of the parents and would like to provide a little more information. When we had our hearing for the motion to intervene, we were granted that motion and given a document with a long list of "findings of fact" and "conclusions of law". In that document, signed by the judge, in both the "findings of fact" and "conclusions of law", it is stated "both the defendant (mom's name) and the plaintiff (dad's name) have acted in opposition of their constitutional rights to raise their child and as such, they do not enjoy any protected status". It's also stated in the findings of fact that my wife and I "enjoy a parent/child like relationship with the minor child and have enjoyed that parent/child relationship for excess of three years" and that both the parents were "neglectful in their lack of care and support for their child".

Is this the protected status that you are referring too? And, while it is not stated in the actual custody order, it IS stated on previous documents that I *believe* are still binding since the document that says that is the same document that allowed us to modify custody.

TPR? I think you are referring to termination of parental rights. This was something very briefly discussed with our lawyer. The lawyer did not feel that we have grounds to pursue termination at this point, and that North Carolina does not typically allow termination based on the incarceration of one parent. I/We are fine with this and have no desire to seek any type of termination at this point.

Ohiogal mentioned a "Csb" case in her post at 5:47. Could someone clarify what a CSB case is?

Thank you again.

Uncle Drew

 

[TheGeekess]

Thank you, Ldij, for taking time to answer my questions.

And thank you for the links. Too much reading for one setting, but I did skim over it quickly.

Thank you as well, Proserpina and Ohio Gal for your discussion. It's a little over my head, but I would like to join and perhaps learn a little. Forgive me, I do not know how to use the multi-quote feature.

The best interest of the child was mentioned. It was my understanding that upon the granting of my motion to intervene, custody matters would be heard with consideration given to us as equal to parents, and that due to the equal standing between the defendant (mother), plaintiff (father) and the intervenors (us), rulings would be made in the best interest of the child.

Interesting that one would quote the Price case. It was part of the case law used for our side while in court.

I saw some commentary concerning the protected status of the parents and would like to provide a little more information. When we had our hearing for the motion to intervene, we were granted that motion and given a document with a long list of "findings of fact" and "conclusions of law". In that document, signed by the judge, in both the "findings of fact" and "conclusions of law", it is stated "both the defendant (mom's name) and the plaintiff (dad's name) have acted in opposition of their constitutional rights to raise their child and as such, they do not enjoy any protected status". It's also stated in the findings of fact that my wife and I "enjoy a parent/child like relationship with the minor child and have enjoyed that parent/child relationship for excess of three years" and that both the parents were "neglectful in their lack of care and support for their child".

Is this the protected status that you are referring too? And, while it is not stated in the actual custody order, it IS stated on previous documents that I *believe* are still binding since the document that says that is the same document that allowed us to modify custody.

TPR? I think you are referring to termination of parental rights. This was something very briefly discussed with our lawyer. The lawyer did not feel that we have grounds to pursue termination at this point, and that North Carolina does not typically allow termination based on the incarceration of one parent. I/We are fine with this and have no desire to seek any type of termination at this point.

Ohiogal mentioned a "Csb" case in her post at 5:47. Could someone clarify what a CSB case is?

Thank you again.

Uncle Drew

CSB=DHR/DHS. The state unit that investigates child abuse/neglect claims.