Can I request a continuance?

[ErinGoBragh]

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

I am in a pickle here. I found out last week that the last time my 7 year old nephew attended school was one month ago when I dropped him off; I told my sister I was going to call CPS, and she broke down and admitted to hard drug use. We have spent the last week trying to get her into rehab, where she is now. In the meantime, I have my nephew and am getting him to school every day, taking care of him, and making sure he's in a stable situation.

The day before my sister went into rehab, she told my nephew's father that she was a drug addict and going in. She signed over temporary guardianship to me, which I am filing in the courts tomorrow, which was the soonest I could get there. In the meantime, I found out today that she was served with papers stating that there will be a hearing April 17th for the father to get full custody.

I'm not sure how to proceed. My sister will (hopefully) still be in rehab as of that point, and she wants me appointed his guardian. The father and I are not on speaking terms since I witnessed domestic violence by him against my sister in front of my nephew and called the police on him, which resulted in a subsequent arrest and assault charges to which he pled guilty. In addition, he has seen his child 5 times in the last two years, all supervised by my mother or my other sister. This is per the court order from the first custody case, in which, due to the violence, the lack of interest in my nephew, and well as proof of drug use in front of his other children which came to late, the judge granted my sister full legal and physical custody with visitation by the father as my sister saw fit, to be supervised my mother. I know this sounds unusual, but that WAS what the judge ordered.

I am concerned with my nephew's welfare, and want what is best for him. He has been in counseling consistently since the assault happened, and continues now (which is a boon, considering the weight on his young shoulders). I do not wish to cut him off from his father, but given the history, I do not want my nephew in that environment, considering that he still expresses in counseling how scared he is of his father, 2 years after the fact.

I have VERY little money for an attorney, since this was unexpected. I have a friend who is going to be sworn in as an attorney at the end of April who specializes in family law, and she is going to represent me for free. However, she will NOT be sworn in by the time the hearing comes around. The father does not have any attorney whatsoever. Can I request a continuance until she can be sworn in? And any other advice? I am feeling overwhelmed right now and don't know the best way to proceed.

 

[ecmst12]

Generally, if dad wants custody, he is going to get it. He has a constitutional right to parent his child. In order for a 3rd party to get custody, even temporary, both parents must consent or both parents must be legally unfit/unavailable.

However, with dad only having supervised visitation with a documented history of violence and lack of presence in the child's life, you *may* be able to retain custody until mom is able to care for the child again. But I wouldn't attempt it without a lawyer.

 

[Proserpina]

Erin, you're not actually a party to the custody hearing - is that right?

If that's the case, I don't think you even have standing to file anything relating to the custody issue.

 

[ErinGoBragh]

Erin, you're not actually a party to the custody hearing - is that right?

If that's the case, I don't think you even have standing to file anything relating to the custody issue.

No. I am not a party to the custody case, but I have no idea how my sister is supposed to go if she's in rehab.

I have, frankly, no idea of what the hell I am doing or what to do next.

 

[ErinGoBragh]

Generally, if dad wants custody, he is going to get it. He has a constitutional right to parent his child. In order for a 3rd party to get custody, even temporary, both parents must consent or both parents must be legally unfit/unavailable.

However, with dad only having supervised visitation with a documented history of violence and lack of presence in the child's life, you *may* be able to retain custody until mom is able to care for the child again. But I wouldn't attempt it without a lawyer.

I understand about dad's constitutional rights, and I know I have a very small chance of getting this done. But I feel like it's in my nephew's best interest to try.. believe me, this is not the most convenient thing for me, but with everything he's been through, I feel SOMEONE owes it to him to at least try for what's in his best interest. I definitely plan on having a lawyer, but this would be her first case. My other friend, who is more experienced, did my sister's custody case, which I would assume bars her from representing me.

 

[Proserpina]

No. I am not a party to the custody case, but I have no idea how my sister is supposed to go if she's in rehab.

I have, frankly, no idea of what the hell I am doing or what to do next.

That's what I was afraid of

If sis can't attend, she's the one who needs to either request a continuance herself or hire an attorney to represent her immediately.

Assuming the funds aren't available to do so, she'll have to file for the continuance. But realistically, if Dad isn't deemed legally unfit, he's going to have at least a better-than-decent shot at custody.

 

[ErinGoBragh]

That's what I was afraid of

If sis can't attend, she's the one who needs to either request a continuance herself or hire an attorney to represent her immediately.

Assuming the funds aren't available to do so, she'll have to file for the continuance. But realistically, if Dad isn't deemed legally unfit, he's going to have at least a better-than-decent shot at custody.

I'm pretty much assuming I have no dog in this fight to begin with, being that I'm not the natural parent. I could try to get the friend who represented my sister before to do it again and perhaps pay the fee, which would at least buy some time. But I keep having this sinking feeling that I'm just going to be wasting money. I don't know what to do; I wasn't planning on raising a 7 year old, but even with everything my brain is telling me, I'll do whatever I can to at least get a shot at keeping him in the school he is now and with someone he knows well.

I guess the part of it I'm having a hard time wrapping my brain around is that even with the lack of visitation on the father's part, in addition to everything else, a court could place a child with someone who is essentially a stranger. I know he's got rights, but isn't the fact that he wasn't fit enough to be granted custody or even unsupervised visitation making him somewhat unfit? Or is being declared unfit essentially the same as stripping a father of their parental rights?

Thanks so much.

 

[Proserpina]

I'm pretty much assuming I have no dog in this fight to begin with, being that I'm not the natural parent. I could try to get the friend who represented my sister before to do it again and perhaps pay the fee, which would at least buy some time. But I keep having this sinking feeling that I'm just going to be wasting money. I don't know what to do; I wasn't planning on raising a 7 year old, but even with everything my brain is telling me, I'll do whatever I can to at least get a shot at keeping him in the school he is now and with someone he knows well.

I guess the part of it I'm having a hard time wrapping my brain around is that even with the lack of visitation on the father's part, in addition to everything else, a court could place a child with someone who is essentially a stranger. I know he's got rights, but isn't the fact that he wasn't fit enough to be granted custody or even unsupervised visitation making him somewhat unfit? Or is being declared unfit essentially the same as stripping a father of their parental rights?

Thanks so much.

I absolutely feel your frustration!

There are many reasons why a parent has supervised visitation though..and they don't all involve the parent being unfit. It does make Dad's task that bit harder, but yes, the odds are stacked against you for right now.

Is there any way, any way at all you can maybe get a short term loan to help pay for an attorney? Anything at all?

This might be a huge question, too - but how long is your sister going to be in rehab?

 

[ErinGoBragh]

I absolutely feel your frustration!

There are many reasons why a parent has supervised visitation though..and they don't all involve the parent being unfit. It does make Dad's task that bit harder, but yes, the odds are stacked against you for right now.

Is there any way, any way at all you can maybe get a short term loan to help pay for an attorney? Anything at all?

This might be a huge question, too - but how long is your sister going to be in rehab?

I can and will beg and borrow money- I was hesitant to ask family for help, since I'm financially doing better than most of them, but I think in this instance I can swallow my pride, particularly since my intended just told me he would be willing to help me pay back the expenses when he starts his job next month.

As far as rehab, she is in there for at least 90 days, assuming she stays. Her commitment was voluntary, but anything less than a 90 day program likely would not be good since she was dealing with a heroin addiction. Since it's still the first week of it, she's barely willing to consider anything beyond her drugs.

 

[BL]

You can file for temporary Guardianship.

Take the paper with you from sister .File at the same courthouse that has the order of Dad's supervised visit .Bring that order up in your request. Bring up there is a pending court hearing.

Let the Judge look at it all and decide .

If she is in rehab ,she should request a continuance for that hearing.