How to Get Custody of Grandchildren

[giosal]

My question involves guardianship in the State of: New Jersey.

17 yr old turning 18 (Adam) this year wants to know if he has rights to keep his brother who is turning 9 this year (Isaiah) in this country and become his Guardian or have his grandmother become their Guardian to that he can keep both of them away from his father who has been neglecting them since their mom died in September 2010. He also wants to know if the $275K they both received from their mom’s insurance is theirs or is it their father’s to do as he pleases.

Adam's father has been leaving him and his little brother alone for extended periods of time during the day and for several weeks at a time. When Adam’s dad is in the states, he’s not working, drinks and drives with his children inside, he’s with multiple women and has brought them to the house, he’s away from the house 12-16 hrs a day spending the money he received from his late wife ($175K); he doesn’t care what the kids are doing in the house, if they did their homework, if they need anything, etc.. He assumes friends and relatives of this children will step in and take care of them. He doesn’t care for them, is not around for them and has been leaving to Peru without them knowing when and if he’ll be back. At one point he took the little brother with him to Peru and whilst there, his family reported to Adam that Isaiah was left with people he didn’t know and was physically abused. Isaiah’s home is with his brother and late mother’s relatives and not in Peru with this man who doesn’t even care about him.

This man has a woman in Peru that had 2 children while he was married to Adam's mom. Those 2 kids are Isiaiah's age. Adam wants to take action. Their grandparents are willing to step in and take custody immediately. He has aunts that want to take custody as well who live in stable family environment who are there for them and care about them both very much.

Can you tell us what their rights are? Can Isaiah be emancipated from his father and go live with his grandparents together with his brother? Does the young man have rights to the money his mom left him and his brother. If the father leaves, what happens to the house they own… The house is a 2 family house which he’s not been taking care of and making repairs. And, he’s been also renting apartments illegally. It was just discovered not too long ago. The town knows and he’s under investigation for that I believe.

Adam has been told by his father that he's going to abandon him when he turns 18 yrs of age and leave with Isiaiah. Adam's father is for sure going to be leaving agian as he has been every other month to go to Peru and they don't know when he'll be coming back. When he's done this in the past he's never come back when he says he will and kids have felt abandandone because he's not there for them and doesn't care for them as a father would.

Please advise.

[Dogmatique]

Isiaiah absolutely will not be emancipated.

Dad is not legally unfit, and has the absolute right to decide where Isiaiah lives - including Peru.

Legally, Isiaiah's home is with his remaining legal parent.

If the child is being abused, the relatives need to contact child services to report the abuse.

[giosal]

So it's okay for Isiah to be left at home by himself without any parental supervision until midnight or later without his father caring whether he needs anything like food, or help with homework or not feeling well.. THe child has been declining in his school work since his mother died and the father really doesn't care or make the effort to go to school and seek additional help for his child. He also suffers from asthma and the father doesn't know how to care for this and really doesn't care.

As for his older son, his father doesn't care what he does now. He lets him have parties where there is drinking and this is all while Isiaiah is in the house and the father is no where to be found. He looks the other way and could care less. This is a very big issue don't you think?

Adam, had a major toothache and the nurse in school tried to call the parent and couldn't find him and so they left him in the care of a relative that lives nearby. When relative made appt to see dentist, this man said cancel the appt because I'm not paying for that... he can go to the public hospital to seek assistance. This relative said well you have to go with him and he said, what for, just to sit there... ? no way. DUH, he's still a minor.

He's also been driving without insurance with kids in car.

this is just a little of what he's done and continues to do... so this is not showing he's legally unfit?

BTW, are you a Family Lawyer practicing in NJ?

[aardvarc]

None of those things have any bearing on emancipation. Emancipation is about minors showing a history of being able to be SELF SUPPORTING - no matter how bad circumstances may be, it is NOT a remedy for abandonment or abuse. The remedy for abandonment or abuse is to report it to authorities and THEY get to determine if intervention is warranted.

He also wants to know if the $275K they both received from their mom’s insurance is theirs or is it their father’s to do as he pleases.

We have no way to know - you'd have to look at the policy and determine the beneficiary.

So it's okay for Isiah to be left at home by himself

But you said "Adam's father has been leaving him and his little brother alone for extended periods of time during the day and for several weeks at a time" - so which is it? If he's leaving a 9 year old at home overnight or for extended periods ALONE, then you can report this to child protective services. Being left at home WITH a 17 (almost 18) year old isn't going to bother authorities.

without any parental supervision until midnight or later

Supervision doesn't have to be PARENTAL supervision, if you're home with him, that's enough.

without his father caring whether he needs anything like food,

Are you implying that the child doesn't have access to food in the home, even when you are home with him? If so, you need to be calling child protective services.

or help with homework

Doesn't create a legal or abuse issue.

or not feeling well..

Is he needing medical care that he's not receiving?

THe child has been declining in his school work since his mother died and the father really doesn't care or make the effort to go to school and seek additional help for his child.

While this might be craptacular parenting, it isn't going to impact termination of parental rights or create an avenue for emancipation.

He also suffers from asthma and the father doesn't know how to care for this and really doesn't care.

And have YOU called EMS, child protective services, etc? Until and unless dad is found to be unfit, nothing is going to change here. And the response from protective services, before any alternative will be considered, is that they will make LOTS of attempts to educate dad, encourage dad and help dad set up appointments and other things BEFORE they'll consider things like removal or termination of rights. As poor of a parent as dad might be, in the big picture of things if the child has a roof over their head, eats every day, has running water, a couple of changes of weather-appropriate clothing, flushing toilets, isn't living in mounds of dirty diapers or rat infestation, and doesn't have IMMEDIATELY apparant medical issues (broken bones, insulin dependent with no insulin in the house), then dad usually won't meet the definition of "unfit". We understand that you're trying to help your brother, but so far there's nothing here that is going to get dad's rights terminated, and at 17 you have no chance of guardianship (and even at 18 it's slim at best).

As for his older son, his father doesn't care what he does now.

He's almost 18 - and when the clock strikes that magic 18, dad can pretend he doesn't even exist.

He lets him have parties where there is drinking and this is all while Isiaiah is in the house and the father is no where to be found. He looks the other way and could care less. This is a very big issue don't you think?

No one's arguing that it's great parenting - but the legal reality is that parents GET to be crappy parents, so long as that parenting doesnt' cross into area of neglect or abuse. The way to determine if it IS crossing over into those areas is to NOTIFY CHILD SERVICES. But really, these are not issues that are going to result in termination of dad's rights.

Adam, had a major toothache and the nurse in school tried to call the parent and couldn't find him and so they left him in the care of a relative that lives nearby. When relative made appt to see dentist, this man said cancel the appt because I'm not paying for that... he can go to the public hospital to seek assistance. This relative said well you have to go with him and he said, what for, just to sit there... ? no way. DUH, he's still a minor.

And what did child services say when you reported this?

He's also been driving without insurance with kids in car.

Not going to impact the issue.

this is just a little of what he's done and continues to do... so this is not showing he's legally unfit?

Not most of it, no. The standard for parenting is incredibly low - shelter, food, clothing, running water and medical care for immediate injuries or life-threatening conditions. The dental issue needs to be addressed, but even that isn't going to result in much more than referrals, "parental education", etc.

All of the issues occurring in Peru are irrelevent to authorities in the US, and dad has the absolute ability to take his child there at will.

The reality you're facing is that even with the issues you've listed, dad isn't really in danger of having his parental rights terminated, even if you call child services about it. But you'll never know unless you call. So either you're willing to make that call, or you're not.

At 17, you have no chance of being named guardian, even IF dad were to loose his parental rights. At 18, you could petition the court, but unless dad were found to be UNFIT, you'd have little to no chance of success. So as you've already been told, the ONLY thing you can do here is notify child services of the issues, but it's important to be realistic about the liklihood of what they'll do (or not do).