Who gets custody of my niece after death of sole custodial parent?

[YOLO]

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

This is potentially a very detailed question. My sister-in-law (wife's sister) was the sole custodial parent of my niece. Father was not on birth certificate and has never met or spoken to the child (currently age 9). Father did take a paternity test about a year ago, and sister-in-law had been receiving child support for approximately the last year. Mother and child resided in Ohio. Father currently resides in Arkansas.

My sister-in-law was having some severe lapses in judgement, and my wife and I stepped in and asked her if we could take guardianship of my niece until she could get things together in her life. My sister-in-law agreed and my wife bought a plane ticket to go get my niece. In between the time the plane ticket was purchased and the travel date my sister-in-law suddenly died.

After the death, my wife and I decided that permanent guardianship of our niece was in her best interest. However almost immediately after the death, we were contacted by the biological father and he informed us that he had not given up parental rights and would seek custody. He also informed us that if we brought her back to AZ then he would seek kidnapping charges against us. After the funeral, we indeed brought our niece back to AZ. We were the closest living family members that were willing to take on the responsibility. When we got back to AZ, we filed legal guardianship paperwork in AZ.

My questions are: Are we in legal jeopardy for the kidnapping threat? What are the chances that the court would take her away from the family that she knows to send her to a man that she has never met? What should our next steps be?

 

[Zigner]

Why did you file for guardianship in the wrong state? Why do you think you can somehow trump the rights of the child's FATHER?

 

[stealth2]

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

This is potentially a very detailed question. My sister-in-law (wife's sister) was the sole custodial parent of my niece. Father was not on birth certificate and has never met or spoken to the child (currently age 9). Father did take a paternity test about a year ago, and sister-in-law had been receiving child support for approximately the last year. Mother and child resided in Ohio. Father currently resides in Arkansas.

My sister-in-law was having some severe lapses in judgement, and my wife and I stepped in and asked her if we could take guardianship of my niece until she could get things together in her life. My sister-in-law agreed and my wife bought a plane ticket to go get my niece. In between the time the plane ticket was purchased and the travel date my sister-in-law suddenly died.

After the death, my wife and I decided that permanent guardianship of our niece was in her best interest. However almost immediately after the death, we were contacted by the biological father and he informed us that he had not given up parental rights and would seek custody. He also informed us that if we brought her back to AZ then he would seek kidnapping charges against us. After the funeral, we indeed brought our niece back to AZ. We were the closest living family members that were willing to take on the responsibility. When we got back to AZ, we filed legal guardianship paperwork in AZ.

My questions are: Are we in legal jeopardy for the kidnapping threat? What are the chances that the court would take her away from the family that she knows to send her to a man that she has never met? What should our next steps be?

Since there is a support order, he has been legally found to be the father. If he is interested in raising HIS daughter, he will be allowed to.

I suggest you speak with attorneys in Ohio (where the child is a resident) and Arkansas (where Dad is a resident).

 

[adjusterjack]

My questions are: Are we in legal jeopardy for the kidnapping threat?

Yes. As a practical matter it's likely custodial interference and not something you'll end up in jail for. But you are still subject to some sort of punishment by the courts.

What are the chances that the court would take her away from the family that she knows to send her to a man that she has never met?

100% against you.

What should our next steps be?

Return the child to her father.

Might as well resign yourself to doing that because it's going to happen anyway.

It's your choice to do it before or after you get into expensive trouble.

 

[YOLO]

Why did you file for guardianship in the wrong state? Why do you think you can somehow trump the rights of the child's FATHER?

We filed in Arizona because that is where we live, and where my niece is now. I do not think we can trump his rights, but were going for minimum disruption. We do not live in Ohio, he does not have a custody order and has never met his daughter. What should we have done? We did not want her to go into the foster care system, and there was no one there to take her. The father did not show up to the funeral.

 

[stealth2]

We filed in Arizona because that is where we live, and where my niece is now. I do not think we can trump his rights, but were going for minimum disruption. We do not live in Ohio, he does not have a custody order and has never met his daughter. What should we have done? We did not want her to go into the foster care system, and there was no one there to take her. The father did not show up to the funeral.

If I were in your shoes, I would contact Dad and ask how he'd like to handle the sutuation so as to have the least disruption to the child, a "breaking in" period, as it were. But if he wants to just take her, you really will have no choice.

ETA: AZ does not have jurisdiction over the child.

 

[YOLO]

Return the child to her father.

The father never had her, was not in the same state as her, and had not made plans to come retrieve her. Would it have been more prudent to allow her to enter into foster care until the father took affirmative action to get her?

 

[LdiJ]

Yes. As a practical matter it's likely custodial interference and not something you'll end up in jail for. But you are still subject to some sort of punishment by the courts.

I cannot be custodial interference because dad has no custody of the child.

100% against you.

That depends on why dad doesn't have any custody.

Return the child to her father.

Might as well resign yourself to doing that because it's going to happen anyway.

It's your choice to do it before or after you get into expensive trouble.

Dad doesn't have any custody and has never met the child so there is no "returning" the child to dad. Dad might very well get custody if the reason wasn't that he didn't get any custody prior to this is due to fitness issues. The child is also aged 9 and you just do not turn a 9 year old over to a complete stranger without some transitioning.

Anything that is done needs to be done with the rights of dad AND the best interests of the child considered.

 

[LdiJ]

The father never had her, was not in the same state as her, and had not made plans to come retrieve her. Would it have been more prudent to allow her to enter into foster care until the father took affirmative action to get her?

No, of course not. As no parent or caretaker of the child resides in the original home state of the child it would not have been proper (or even kind) to leave her there.

Get a consult with a local attorney about the whole situation. My condolences to everyone, particularly the child.

 

[Zigner]

We filed in Arizona because that is where we live, and where my niece is now. I do not think we can trump his rights, but were going for minimum disruption. We do not live in Ohio, he does not have a custody order and has never met his daughter. What should we have done? We did not want her to go into the foster care system, and there was no one there to take her. The father did not show up to the funeral.

What is the difference in disruption between you taking the child to Arizona, vs. the child's father taking the child to his state?

The man is the child's FATHER. He has RIGHTS that you simply do not have. Again, why do you feel that you have ANY right to do this?

 

[LdiJ]

What is the difference in disruption between you taking the child to Arizona, vs. the child's father taking the child to his state?

The man is the child's FATHER. He has RIGHTS that you simply do not have. Again, why do you feel that you have ANY right to do this?

The child is 9 and has never met him and he did not come to the original home state to pick her up. It wasn't even the child's mother that passed away but an extended family member with sole custody. He did not try to get custody when he was put on child support by that extended family member either.

Therefore its a huge difference. She knows and loves the people she is with right now, she has never met her father. You are suggesting that a 9 year old, who is already traumatized by the death of her caregiver, should be turned over to a stranger, with absolutely no transitioning. I cannot imagine anything more cruel.

 

[YOLO]

What is the difference in disruption between you taking the child to Arizona, vs. the child's father taking the child to his state?

I guess my question is where should she go in the meantime. To this point, he father has said in a text message that he would assert his legal right to custody. He hasn't informed us of any plans to file for custody or even come see her, which again he has not done ever in 9 years. What should be done with her in the limbo period in which he does not yet have a court order and no one else is willing to take her long term? If the court orders us to turn him over to her obviously we would comply, but voluntarily giving a loved one over to a person she had never met and we have never met in the absence of a court order seems negligent to me.

 

[YOLO]

The child is 9 and has never met him and he did not come to the original home state to pick her up. It wasn't even the child's mother that passed away but an extended family member with sole custody. He did not try to get custody when he was put on child support by that extended family member either.

I apologise, I must have been unclear at some point. It was the child's mother (my wife's sister) who died.

 

[Zigner]

I guess my question is where should she go in the meantime. To this point, he father has said in a text message that he would assert his legal right to custody. He hasn't informed us of any plans to file for custody or even come see her, which again he has not done ever in 9 years. What should be done with her in the limbo period in which he does not yet have a court order and no one else is willing to take her long term? If the court orders us to turn him over to her obviously we would comply, but voluntarily giving a loved one over to a person she had never met and we have never met in the absence of a court order seems negligent to me.

Perhaps you could offer to have dad come to your town for a few days to get to know each other, and then he can take his child home with him.

Your intentional denial of the father's rights could easily come back to bite you HARD. The courts may sanction you, it could become criminal, and, even if those things don't happen, you run the very real risk of never seeing this child again. Play nice with dad.

 

[YOLO]

Your intentional denial of the father's rights could easily come back to bite you HARD. The courts may sanction you, it could become criminal, and, even if those things don't happen, you run the very real risk of never seeing this child again. Play nice with dad.

What part of this scenario do you think that the court would characterize as intentionally denying the father his rights? Not trying to be
argumentative, I genuinely want to know.

Thank you for your responses this far.