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

[LdiJ]

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.

I do not agree with this. I think more of a transition is going to be necessary for the best interest of the child.

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.

Ok, there is no way that this is anything even remotely near a criminal case a this point.

However I agree that if they do not play nice with dad that there is a risk that they won't see the child again.

 

[Ohiogal]

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?

Father is the only parent. HE will get custody if he wants it. You could be in trouble. Because the proper state would be Ohio or Arkansas. Did you serve father with the legal guardianship paperwork? Because HE IS THE CHILD'S ONLY LIVING PARENT. Doesn't matter that he is not on the birth certificate.

 

[YOLO]

Father is the only parent. HE will get custody if he wants it. You could be in trouble. Because the proper state would be Ohio or Arkansas. Did you serve father with the legal guardianship paperwork?

The guardianship paperwork was only filed last week so no one has yet been served, but in answer to your question, yes the biological father will be served with the guardianship paperwork.

 

[Ohiogal]

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.

Doesn't matter. You should have introduced her to her father and worked on transition. HE is her father. YOU are legal strangers. Minimum disruption would have been YOU moving to Ohio and living in your sister's place. You filed improperly.

 

[Ohiogal]

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





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




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.

Dad was the noncustodial parent when child support was established. When mom died, dad became the custodian by virtue of the fact that he has parental rights, and is the legal father.

 

[Ohiogal]

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.

WRONG. It was OP's sister-in-law -- the child's MOTHER. You are ridiculous.

 

[Zigner]

Ok, there is no way that this is anything even remotely near a criminal case a this point.

Oh, except for that whole Custodial Interference thing... (possibly even a felony).



http://codes.ohio.gov/orc/2919.23


2919.23 Interference with custody.
(A) No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section:

(1) A child under the age of eighteen, or a mentally or physically handicapped child under the age of twenty-one;

(2) A person committed by law to an institution for delinquent, unruly, neglected, abused, or dependent children;

(3) A person committed by law to an institution for the mentally ill or an institution for persons with intellectual disabilities.

(B) No person shall aid, abet, induce, cause, or encourage a child or a ward of the juvenile court who has been committed to the custody of any person, department, or public or private institution to leave the custody of that person, department, or institution without legal consent.

(C) It is an affirmative defense to a charge of enticing or taking under division (A)(1) of this section, that the actor reasonably believed that the actor's conduct was necessary to preserve the child's health or safety. It is an affirmative defense to a charge of keeping or harboring under division (A) of this section, that the actor in good faith gave notice to law enforcement or judicial authorities within a reasonable time after the child or committed person came under the actor's shelter, protection, or influence.

(D)

(1) Whoever violates this section is guilty of interference with custody.

(2) Except as otherwise provided in this division, a violation of division (A)(1) of this section is a misdemeanor of the first degree. If the child who is the subject of a violation of division (A)(1) of this section is removed from the state or if the offender previously has been convicted of an offense under this section, a violation of division (A)(1) of this section is a felony of the fifth degree. If the child who is the subject of a violation of division (A)(1) of this section suffers physical harm as a result of the violation, a violation of division (A)(1) of this section is a felony of the fourth degree.

(3) A violation of division (A)(2) or (3) of this section is a misdemeanor of the third degree.

(4) A violation of division (B) of this section is a misdemeanor of the first degree. Each day of violation of division (B) of this section is a separate offense.

Cite as R.C. § 2919.23

Amended by 131st General Assembly File No. TBD, HB 158, §1, eff. 10/12/2016.

Effective Date: 07-01-1996 .

 

[Zigner]

I'd like to take this opportunity to point out that our OP has said NOTHING about any concerns for the safety of the child. The ONLY thing the OP has a concern with is that the child doesn't know her father, and we don't even know why that is (nor does the OP). For all we know, MOM actively prevented a relationship.

What we have, at this point, is the legal father (and only parent) of the child who has expressed the desire to have HIS child with HIM, and who is a perfectly fit parent, vs. extended family who has shown an utter disregard for the rights of the father.

 

[LdiJ]

Oh, except for that whole Custodial Interference thing... (possibly even a felony).



http://codes.ohio.gov/orc/2919.23


2919.23 Interference with custody.
(A) No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section:

(1) A child under the age of eighteen, or a mentally or physically handicapped child under the age of twenty-one;

(2) A person committed by law to an institution for delinquent, unruly, neglected, abused, or dependent children;

(3) A person committed by law to an institution for the mentally ill or an institution for persons with intellectual disabilities.

(B) No person shall aid, abet, induce, cause, or encourage a child or a ward of the juvenile court who has been committed to the custody of any person, department, or public or private institution to leave the custody of that person, department, or institution without legal consent.

(C) It is an affirmative defense to a charge of enticing or taking under division (A)(1) of this section, that the actor reasonably believed that the actor's conduct was necessary to preserve the child's health or safety. It is an affirmative defense to a charge of keeping or harboring under division (A) of this section, that the actor in good faith gave notice to law enforcement or judicial authorities within a reasonable time after the child or committed person came under the actor's shelter, protection, or influence.

(D)

(1) Whoever violates this section is guilty of interference with custody.

(2) Except as otherwise provided in this division, a violation of division (A)(1) of this section is a misdemeanor of the first degree. If the child who is the subject of a violation of division (A)(1) of this section is removed from the state or if the offender previously has been convicted of an offense under this section, a violation of division (A)(1) of this section is a felony of the fifth degree. If the child who is the subject of a violation of division (A)(1) of this section suffers physical harm as a result of the violation, a violation of division (A)(1) of this section is a felony of the fourth degree.

(3) A violation of division (A)(2) or (3) of this section is a misdemeanor of the third degree.

(4) A violation of division (B) of this section is a misdemeanor of the first degree. Each day of violation of division (B) of this section is a separate offense.

Cite as R.C. § 2919.23

Amended by 131st General Assembly File No. TBD, HB 158, §1, eff. 10/12/2016.

Effective Date: 07-01-1996 .

Zig, dad doesn't have any custody so it cannot be custodial interference. Dad was not married to mom so there was no automatic custody for dad and he either was never given any or never filed for it. Dad has never met the child.

 

[Ohiogal]

The guardianship paperwork was only filed last week so no one has yet been served, but in answer to your question, yes the biological father will be served with the guardianship paperwork.

He is the FATHER. The only father. The paperwork needs to be filed in the state of Ohio most likely.

 

[Zigner]

Zig, dad doesn't have any custody so it cannot be custodial interference. Dad was not married to mom so there was no automatic custody for dad and he either was never given any or never filed for it. Dad has never met the child.

Read the law. The law doesn't mention "custody".

ETA: Whether or not he's on the birth certificate, he has been found to be the legal father of the child, as evidenced by the child support order.

 

[Ohiogal]

Zig, dad doesn't have any custody so it cannot be custodial interference. Dad was not married to mom so there was no automatic custody for dad and he either was never given any or never filed for it. Dad has never met the child.

BULL. There was a child support order. That establishes custody in so far as dad has a right to custody. Since mom is deceased, DAD is the only parent. He has more custody than aunt and uncle. That is OHIO. See how that works.

REREAD THE LAW:

No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section:

Dad is the PARENT. Hence auntie and uncle are committing a crime.

 

[adjusterjack]

The guardianship paperwork was only filed last week so no one has yet been served, but in answer to your question, yes the biological father will be served with the guardianship paperwork.

What part of "He is the father" don't you understand?

He doesn't have to "file" for anything. All he has to do is show up on your doorstep and the child goes down the road.

Once you have served him with the guardianship papers it's a simple matter for him to put the kibosh on it and take the child from you.

I agree with an earlier suggestion that you call him and ask him what he wants to do and how he wants to do it, then cooperate because fighting a legal battle that you can't win will be so much worse for you and the child.

 

[Zigner]

BULL. There was a child support order. That establishes custody in so far as dad has a right to custody. Since mom is deceased, DAD is the only parent. He has more custody than aunt and uncle. That is OHIO. See how that works.

REREAD THE LAW:



Dad is the PARENT. Hence auntie and uncle are committing a crime.

And, since they took the child out of state, it could even be considered a felony.

 

[Ohiogal]

And, since they took the child out of state, it could even be considered a felony.

Yepper... especially if they didn't give dad all of their contact information or ask to deliver the child to him. Sorta like the plot of many Hollywood movies.