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  1. #1
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    Default Mother Dead, Grandparents Trying to Take Custody from Father

    My question involves a child custody case from the State of: Missouri

    2 weeks ago my nieces mother died in a car accident. Nobody notified my brother, who is the father of her. Her maternal grandmother took her home from the hospital, and has had her ever since. My brother and his ex just had a verbal agreement about custody, she kept her during the week and he got her on weekends. My brother lives with my parents and has no job. He's on parole, but working on getting things back on track and doing right.
    He left her in the care of her grandparents because he felt it was right to not upset her or them anymore right after the death of her mother, their daughter. He has tried to discuss with them an arrangement where he would share joint custody with them, only because he doesn't want to fight and wants to do what's right for her.
    Now they have offered him $15,000 to sign some paperwork giving away his rights to have a say in anything in her life. They don't want to allow him to take her from their house, even though they have no legal custody of her right now.
    I know in MO they do not recognize grandparent rights for visitation, but not sure about custody after parental death. These people have a lot of money, and I don't see why money always has to be the deciding factor if he can provide for her.
    What can he do? I know they have no legal rights to her now, but he's afraid to cause problems by taking her away altogether, and he doesn't want to take the police to their house because he doesn't want to traumatize her anymore than she already is by seeing her mother die.
    If he takes her, they will most likely file for temporary custody and try to fight for full legal custody. What kind of chance does he have of them taking her away considering his record, which isn't anything violent, and considering he lives with my parents and has no job? We have discussed him giving me custody and allowing her to live with me, but I don't have the funds for a lawyer and custody battle either.

  2. #2
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    Quote Quoting Dawn
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    My question involves a child custody case from the State of: Missouri

    2 weeks ago my nieces mother died in a car accident. Nobody notified my brother, who is the father of her. Her maternal grandmother took her home from the hospital, and has had her ever since. My brother and his ex just had a verbal agreement about custody, she kept her during the week and he got her on weekends. My brother lives with my parents and has no job. He's on parole, but working on getting things back on track and doing right.
    He left her in the care of her grandparents because he felt it was right to not upset her or them anymore right after the death of her mother, their daughter. He has tried to discuss with them an arrangement where he would share joint custody with them, only because he doesn't want to fight and wants to do what's right for her.
    Now they have offered him $15,000 to sign some paperwork giving away his rights to have a say in anything in her life. They don't want to allow him to take her from their house, even though they have no legal custody of her right now.
    I know in MO they do not recognize grandparent rights for visitation, but not sure about custody after parental death. These people have a lot of money, and I don't see why money always has to be the deciding factor if he can provide for her.
    What can he do? I know they have no legal rights to her now, but he's afraid to cause problems by taking her away altogether, and he doesn't want to take the police to their house because he doesn't want to traumatize her anymore than she already is by seeing her mother die.
    If he takes her, they will most likely file for temporary custody and try to fight for full legal custody. What kind of chance does he have of them taking her away considering his record, which isn't anything violent, and considering he lives with my parents and has no job? We have discussed him giving me custody and allowing her to live with me, but I don't have the funds for a lawyer and custody battle either.
    If this was an unwed situation and the two parents only had a verbal agreement about custody then your brother does not have custody of the child either.

    Therefore he has no choice but to file in court for custody of his child. He needs to do so as soon as possible.

  3. #3
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    In order for a third party to gain custody against the wishes of a surviving parent who has been an active part of the child's life, they'll generally need to prove that the parent is unfit. Since your brother had his daughter every weekend, it would seem that at least Mom considered him a fit parent and this will make the gp's job considerably more difficult.

    Your brother needs to file immediately for custody...but frankly, if the grandparents do file something he's going to need an attorney - specially if they have one.

    What often happens is grandparents of the deceased parent file for custody AND visitation (asking for the moon, basically), in order to force the surviving parent into mediation where the parent will agree to at least some court-ordered visitation.

    How old is your niece, incidentally?
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  4. #4
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    My niece is 4, and I told him he needs to get an attorney, but with no job, he's not able to afford one. Is there some sort of legal aid he can get, and where might he go to do that? He has no problem with even sharing custody with them, he just doesn't want to have to give up his rights, which is what they are pushing for. They have her now and won't even let him take her home, I know it's because they are sure he will not bring her back to them, which now he will not, but before all of this he would have. They were never married, they split up about a year ago and she has lived with her mother, and yes he has had her for at least 2-3 days every week.

  5. #5
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    Quote Quoting Dawn
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    My niece is 4, and I told him he needs to get an attorney, but with no job, he's not able to afford one. Is there some sort of legal aid he can get, and where might he go to do that? He has no problem with even sharing custody with them, he just doesn't want to have to give up his rights, which is what they are pushing for. They have her now and won't even let him take her home, I know it's because they are sure he will not bring her back to them, which now he will not, but before all of this he would have. They were never married, they split up about a year ago and she has lived with her mother, and yes he has had her for at least 2-3 days every week.


    I strongly advise against offering ANY custody. Once that is court-ordered, it will be VERY difficult for Dad to change it in the future.

    Honestly - I think this would be a very bad idea, and here's why.

    Say Dad gets a job offer two states away. He wants to move, right? Take his daughter with him?

    What if he meets the love of his life? Wants to move to her State?

    The grandparents, if they have court-ordered joint custody, can actually prevent him from relocating his daughter. While it wouldn't necessarily be a slam-dunk for them, they could make life VERY hard for your brother.

    While I think it's great when grandparents and extended family are able to enjoy and participate in the lives of the children, I'm far more concerned about the constitutional rights of the actual parent. If it were me, I would basically "force" the issue - force the grandparents to prove to a judge why they should have any type of custody or visitation. I wouldn't agree to anything in mediation, either.

    He can file for custody himself without an attorney. There are forms here that may help him.

    More help here
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  6. #6
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    While I think it's great when grandparents and extended family are able to enjoy and participate in the lives of the children, I'm far more concerned about the constitutional rights of the actual parent. If it were me, I would basically "force" the issue - force the grandparents to prove to a judge why they should have any type of custody or visitation. I wouldn't agree to anything in mediation, either.

    He can file for custody himself without an attorney. There are forms here that may help him.

    More help here[/QUOTE]


    Thank you for the help and info. It is greatly appreciated. I do have another question. Since he is currently unemployed and on parole, how bad is that for him? Isn't that enough to prove to a judge why they should have something?

    Also on these forms for respondent/other party, ??? There is no other party, so how would he go about filling that out??

  7. #7
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    No - because you're allowed to be a parolee and unemployed and have full custody of your kids (unless your parole conditions say otherwise).

    Parents have a constitutionally-protected right to parent their child/ren. The burden of proof will be on the grandparents to show why Dad shouldn't have custody. This is a terrifically difficult burden to meet (and for good reason).

    So, let's look at Dad.

    He lives with your mother - so he has a home and at least something of a support system. He had/has his daughter 2-3 nights per week, which shows that kiddo's Mom was not only fine with his living arrangements, but that Mom TRUSTED him as a fit parent.

    These are ALL in Dad's favor. Grandparents don't have ANY inherent rights to custody or visitation of their grandchildren and while visitation is more commonly ordered after the death of a parent, it's never a slam-dunk and even less so if the GPs don't live in PA, NJ or NY (which are generally considered the "Grandparent-friendly" States).

    Just double checked MO statute. The grandparents would indeed have to prove that Dad is unfit. MO uses a three-prong test:

    1. Both parents are unfit, unable or unsuitable to have custody
    2. Custody for the grandparent is in the best interests of the child
    3. The grandparent is a suitable custodian and can give the child a stable and adequate home

    As I heavily doubt they can meet the burden of #1, the other two are really moot.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  8. #8
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    MO does not recognize grandparent rights, that I do know. I edited my post above, but let me ask again, who exactly is supposed to be the respondent or other party on the forms for custody? If nobody, which is what I assume, then what should be written in there? I read everything should be filled out, so I will assume N/A is not good enough?

  9. #9
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    MO does allow grandparents standing for sue in certain conditions.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  10. #10
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    Default Re: Mother Dead, Grandparents Trying to Take Custody from Father

    Quote Quoting Dogmatique
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    No - because you're allowed to be a parolee and unemployed and have full custody of your kids (unless your parole conditions say otherwise).

    Parents have a constitutionally-protected right to parent their child/ren. The burden of proof will be on the grandparents to show why Dad shouldn't have custody. This is a terrifically difficult burden to meet (and for good reason).

    So, let's look at Dad.

    He lives with your mother - so he has a home and at least something of a support system. He had/has his daughter 2-3 nights per week, which shows that kiddo's Mom was not only fine with his living arrangements, but that Mom TRUSTED him as a fit parent.

    These are ALL in Dad's favor. Grandparents don't have ANY inherent rights to custody or visitation of their grandchildren and while visitation is more commonly ordered after the death of a parent, it's never a slam-dunk and even less so if the GPs don't live in PA, NJ or NY (which are generally considered the "Grandparent-friendly" States).

    Just double checked MO statute. The grandparents would indeed have to prove that Dad is unfit. MO uses a three-prong test:

    1. Both parents are unfit, unable or unsuitable to have custody
    2. Custody for the grandparent is in the best interests of the child
    3. The grandparent is a suitable custodian and can give the child a stable and adequate home

    As I heavily doubt they can meet the burden of #1, the other two are really moot.
    You might want to read Wilde vs Wilde before you include NJ in the "grandparent friendly" group.

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