Grandparents rights in Arkansas

[psday64]

the summer of 2004, my brother (35) believed that he was the father of his ex-girlfriend's child. he was waiting til she had the baby, then he was going to court to have a dna test done to prove that it was his child. the child was born in march 2005.
my brother was killed in a motorcycle accident in september 2004. when the child was born in march of 2005, we contacted the mother by mail and told her that we could like to know the child if the child was my brothers. she claims to her friends and family that the child is not my brothers. those same friends felt like the baby was my brothers. we have left the family alone, my parents were trying to come to terms with their son's death.
my parents want to know if the baby is my brother's and they want to know the child if he is my brother's. my brother had no other children.
by the way i read A.C.A. 9-13-103, if they can prove that the child is my brothers.

is this a impossible process? am i understanding the law that they have a right to see the child? any information you can give me will be greatly appreciated.

Thanks
Trish

[Clair Bonner]

the summer of 2004, my brother (35) believed that he was the father of his ex-girlfriend's child. he was waiting til she had the baby, then he was going to court to have a dna test done to prove that it was his child. the child was born in march 2005.
my brother was killed in a motorcycle accident in september 2004. when the child was born in march of 2005, we contacted the mother by mail and told her that we could like to know the child if the child was my brothers. she claims to her friends and family that the child is not my brothers. those same friends felt like the baby was my brothers. we have left the family alone, my parents were trying to come to terms with their son's death.
my parents want to know if the baby is my brother's and they want to know the child if he is my brother's. my brother had no other children.
by the way i read A.C.A. 9-13-103, if they can prove that the child is my brothers.

is this a impossible process? am i understanding the law that they have a right to see the child? any information you can give me will be greatly appreciated.

Thanks
Trish

Your first hurdle is "tissue." Do you know if any physician kept and stored any of your brother's tissue, of any kind? If so, do you know the location of that tissue? Without tissue, it's highly doubtful that you'll be able to have a judge issue an order to exhume your brother's body to obtain a tissue sample. So, I hope some physician has some stored away. Let us know.

[Happy Trails]

Actually, they wouldn't need a sample of the alleged father's tissue.

What if the father is missing or deceased?

Several DNA testing options are available if the father is missing or deceased: viability test, grandparentage, and genetic reconstruction.

If an alleged father is deceased, we might be able to use some biological samples, such as a preserved tissue sample from a coroner’s office. We need to first perform a viability test to determine if there is enough useful DNA in the sample. If enough useful DNA is present, we can use this sample and proceed with the standard paternity test. Please call us at 1-888-362-2592 to discuss this possibility with an experienced case manager.

If no biological samples from the father are available, we can look at close family members to determine if a child belongs to that family. A grandparentage test is the first option to try. The following persons must be tested:

Paternal grandmother (Alleged father’s mother)
Paternal grandfather (Alleged father’s father)
Child
Child’s mother
If the paternal grandparents are not both available, the next option is a genetic reconstruction. At least two close relatives of the alleged father are needed to participate in this test. A close relative is a full brother/sister and/or a biological parent of the deceased/missing alleged father. In addition, the mother and child must participate. The result of this test will show the probability that the child is related to the tested parties.

Source:

http://www.paternity-answers.com/faq.html

[Clair Bonner]

Actually, they wouldn't need a sample of the alleged father's tissue.

Source:

http://www.paternity-answers.com/faq.html

Allow me to clarify. I only said this would be the "first hurdle." I didn't say it would be the only way this could be accomplished. Secondary tissue samples could be used. However, any DNA Lab will tell you that it is always best to use "pure" and "direct" tissue from a parent, rather than secondary samples from surviving relatives of the deceased, which, I imagine, is the reason why paternal samples are the first item mentioned in their paragraph, where they say, "If an alleged father is deceased, we might be able to use some biological samples, such as a preserved tissue sample from a coroner’s office."

[aaron]

Arkansas defines by statute who may initiate paternity proceedings:

Petitions for paternity establishment may be filed by:

(1) A biological mother;

(2) A putative father;

(3) A person for whom paternity is not presumed or established by court order; or

(4) The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration.

Thus an initial hurdle would be getting standing to initiate paternity proceedings. Section 9-10-108(3) provides for paternity testing involving the mother, child, and a paternal relative when the presumed father is deceased.

[Clair Bonner]

Arkansas defines by statute who may initiate paternity proceedings:
Thus an initial hurdle would be getting standing to initiate paternity proceedings. Section 9-10-108(3) provides for paternity testing involving the mother, child, and a paternal relative when the presumed father is deceased.

Once a preliminary DNA test is completed, a third party relative could initiate a Petition (legal standing) on behalf of the child and have that attorney appointed as the GAL on behalf of the child. The child, through the GAL, could then request a formal, court ordered, DNA test to prove paternity.

Then, once paternity is established, the next hurdle would be getting past Troxel vs. Granville, along with the long line of cases that followed it, to even determine if the mother's rights outweigh the decision of the court to order third party visitation. That would be the hardest of all hurdles, and we're not even yet talking about all the dollars for all of this. I can't even imagine how many thousands and thousands of dollars this would require.

[aaron]

While it is true that somebody could initiate the action on behalf of the child, it doesn't inexorably follow that any third party relative can pop into a court, claim to represent the child, and have a legal right to initiate paternity proceedings. If you are aware of any Arkansas legal authority which would permit such an intervention in the child's family, by all means share it.

[Clair Bonner]

While it is true that somebody could initiate the action on behalf of the child, it doesn't inexorably follow that any third party relative can pop into a court, claim to represent the child, and have a legal right to initiate paternity proceedings. If you are aware of any Arkansas legal authority which would permit such an intervention in the child's family, by all means share it.

An excellent point. However, and while we both agree that the above law allows a child legal standing, it would seem to me that there should be some sort of legal authority that states that the child's rights do not necessarily hinge, or begin and end, on what the mother does, or doesn't do, to establish paternity. In other words, there must be something in the law that allows the paternal side of the family to assist the child in exercising the child's rights in this regard, and that the mother isn't the only one who could "pop into court." It further seems logical to me that if that were the case, the child could, theoretically, be forced to go through life never knowing who the father was, and that doesn't seem fair. It is my impression that the law always attempts fairness among competing parties and interests.

And, it is because of your excellent point that this family needs, more than ever, to consult with a local family law attorney to help make such a determination vis-a-vis the question of whether or not it is only the mother who has legal standing to initiate a petition on behalf of the child, or whether some other family member has that right on behalf of the child.

[psday64]

thanks for your replies.
my father may have opportunity to see the child in a few weeks. we've never seen him. others that have seen him says he looks like my brother. after my dad sees him, then if he thinks there is a possibility that he is his grandchild, he wants to pursue the issue.
we don't want to cause the mother harm or heartache. they just want to know their grandchild and allow him to know his father's family.
my mother is going to talk to the girl's father this week. now understand, these aren't teenagers, my brother was 35 and the girl is early 30's. the girl is not terrilby close to her father.
i just thought that might me the way to try to initiate contact before getting into a legal battle that we'd like to avoid. i just wondered if we really had a leg to stand on.

when my brother died there was no tissue collected. we put up his hairbrush and i have some rocks that were covered in his blood from the accident. my parents are willing to be tested to help verify paternity. i imagine that would be what would have to be done. hopefully it won't go that far.

thanks again.

[Clair Bonner]

thanks for your replies.
my father may have opportunity to see the child in a few weeks. we've never seen him. others that have seen him says he looks like my brother. after my dad sees him, then if he thinks there is a possibility that he is his grandchild, he wants to pursue the issue.
we don't want to cause the mother harm or heartache. they just want to know their grandchild and allow him to know his father's family.
my mother is going to talk to the girl's father this week. now understand, these aren't teenagers, my brother was 35 and the girl is early 30's. the girl is not terrilby close to her father.
i just thought that might me the way to try to initiate contact before getting into a legal battle that we'd like to avoid. i just wondered if we really had a leg to stand on.

when my brother died there was no tissue collected. we put up his hairbrush and i have some rocks that were covered in his blood from the accident. my parents are willing to be tested to help verify paternity. i imagine that would be what would have to be done. hopefully it won't go that far.

thanks again.

Whether or not your father "looks like the child," or whether there is any other familial resemblance, is not the legal question. I think you, and all of us, can agree that sometimes it's difficult to see whether or not a child is of a particular family based upon looks. What if your father doesn't "think" the child "looks" too much like himself, or at all? Does the question of paternity stop at that point? What if your father is wrong? The legal question is also not whether your side of the family is going to "cause the mother harm or heartache." I think that answer to that is fairly clear when you said, "she claims to her friends and family that the child is not my brothers. those same friends felt like the baby was my brothers." So, regardless of what your father or mother think about the child's "looks," it appears that the mother was, at least, attempting to distance herself, and her child, from your side of the family and that whatever your family does is going to "cause the mother harm or heartache" because, clearly, anything your side of the family does, legally, is going to do just that.

The only question, regardless of "looks," is whether someone on your side of the family has legal standing to file a Petition to assist the child in exercising the child's rights to a paternity test. Then, the next question is if, assuming your brother is the biological father, whether or not your parents, or any other third party, has rights to visitation IF the mother says no. This is why you need an attorney who is familiar with your State statutes on Grandparent visitation, and whether the Troxel case, and those cases coming after it, will help or hinder your parents in their quest to obtain lawful visitation rights.

Your family has an expensive and an uphill battle. And, I'm sure, based upon what your quoted the mother as having said to family and friends, that she doesn't want to go through any of this.