How to Get Temporary Custody of Our Nephews, Left With Stepmother

[kc82]

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

I'll try to keep this simple: My brother has two boys (11 yrs & 12 yrs). Their biological mother had her parental rights terminated 8 years ago. These kids have been in the system for several years and just in the last 4 years have been living full-time with their father (my brother) and his wife.

Recently, my brother took off to Texas and we have learned that he is not planning on coming back to Michigan anytime soon, plans on leaving his wife, and has essentially left his two boys with the "step-mom".

We have now come to learn that the step-mother is mistreating the boys. When we see them, they are dirty, clothes are torn and are several sizes too small. The boys do not have underpants or socks. And they are living in the basement of their home, with both boys sharing a single mattress. (We have witnessed this).

Today my brother called and asked if myself and my husband would take temporary custody of his boys. My husband and I have no children, we have a home, we have extra bedrooms, and we both are employed and could afford to care of our nephews.

So I guess my question(s) are:

(1) Since my brother is the one with sole custody of the boys, is he able to sign over temporary custody of the boys without step-mom interfering?
(2) Does the "step-mom" have any say as to whether or not we can take the boys?
(3) What are the steps we should take to initiate the process of helping our nephews and getting them out of that environment?

If you have any questions for me that may help you provide a better answer, please just let me know. I appreciate anyone who takes the time to read and respond!

[Mr. Knowitall]

We have now come to learn that the step-mother is mistreating the boys. When we see them, they are dirty, clothes are torn and are several sizes too small. The boys do not have underpants or socks. And they are living in the basement of their home, with both boys sharing a single mattress. (We have witnessed this).

How bad are things? Have you called protective services? It follows from your post that there's a history of involvement by protective services - is that continuing?

Since my brother is the one with sole custody of the boys, is he able to sign over temporary custody of the boys without step-mom interfering?

He can appoint you as guardians, as described below. If the stepmother contests his action, the matter could end up in court.

Does the "step-mom" have any say as to whether or not we can take the boys?

You mean, if you simply show up at her house or the child's school and claim "His dad said we could take them, so we're taking them"? She certainly has a say about what happens at her house, and I am skeptical that the school is simply going to take your word for it. Follow the procedures outlined below.

What are the steps we should take to initiate the process of helping our nephews and getting them out of that environment?

If the children are in fact being culpably neglected, as previously suggested, you can involve protective services.

What you need to do is have dad execute a grant of guardianship to you - an appointment that complies with this statute (note, two witnesses are required) - and you can use that in probate court to seek guardianship. You should also be prepared to document that the mother's parental rights were terminated, or if the record is sealed being able to identify the case from prior protective proceedings sufficiently that the court can verify that outcome.

(1) The parent of an unmarried minor may appoint a guardian for the minor by will or by another writing signed by the parent and attested by at least 2 witnesses.

(2) Subject to the right of the minor under section 5203, if both parents are dead or have been adjudged to be legally incapacitated or the surviving parent has no parental rights or has been adjudged to be legally incapacitated, a parental appointment becomes effective when the guardian's acceptance is filed in the court in which the will containing the nomination is probated or, if the nomination is contained in a nontestamentary nominating instrument or the testator who made the nomination is not deceased, when the guardian's acceptance is filed in the court at the place where the minor resides or is present. If both parents are dead, an effective appointment by the parent who died later has priority.

(3) A parental appointment effected by filing the guardian's acceptance under a will probated in the state of the testator's domicile is effective in this state.

(4) Upon acceptance of appointment, the guardian shall give written notice of acceptance to the minor and to the person having the minor's care or the minor's nearest adult relative.

If stepmom contests the appointment and things go to court, the appointment creates a presumption in your favor:

(1) A person interested in the welfare of a minor, or a minor if 14 years of age or older, may petition for the appointment of a guardian for the minor. The court may order the family independence agency or a court employee or agent to conduct an investigation of the proposed guardianship and file a written report of the investigation.

(2) The court may appoint a guardian for an unmarried minor if any of the following circumstances exist:

(a) The parental rights of both parents or the surviving parent are terminated or suspended by prior court order, by judgment of divorce or separate maintenance, by death, by judicial determination of mental incompetency, by disappearance, or by confinement in a place of detention.

(b) The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor's care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed.

(c) All of the following:

(i) The minor's biological parents have never been married to one another.

(ii) The minor's parent who has custody of the minor dies or is missing and the other parent has not been granted legal custody under court order.

(iii) The person whom the petition asks to be appointed guardian is related to the minor within the fifth degree by marriage, blood, or adoption.

(3) A minor's limited guardian may petition to be appointed a guardian for that minor, except that the petition shall not be based upon suspension of parental rights by the order that appointed that person the limited guardian for that minor.

(4) A guardian appointed under section 5202 whose appointment is not prevented or nullified under section 5203 has priority over a guardian who may be appointed by the court. The court may proceed with an appointment upon a finding that a guardian appointed in a manner described in section 5202 has failed to accept the appointment within 28 days after the notice of the guardianship proceeding.

(5) For the minor ward's welfare, the court may at any time order the minor ward's parents to pay reasonable support and order reasonable parenting time and contact of the minor ward with his or her parents.

[kc82]

Thank you so much for your response. You have no idea how helpful this is to us.

Things are pretty bad at their house and they are living in complete filth. CPS has been involved for many years, however each time they are reported (by family, friends, etc...), step mom is alerted that CPS is coming by and she cleans up and forces the children to lie to the workers. She scares them and makes them believe they will be taken and put into another home (which they had happen in the past).

We did call CPS yesterday and the case worker was not aware that dad left to Texas and left the kids with Step-Mom. They called the number they last had on file and it's disconnected, so they will be doing a drop by to check on the children. It's our hope that they will see the true living environment of the children.

We would never forcefully take the boys by going to their house or school, which is why we want to do our research and find as much information as possible so we can proceed with caution. If our nephew's step-mother were allowed to keep the boys, their future does not look good. And I don't say this because I'm being overly emotional about the situation. We've seen the way she's treated the boys and at times it's almost as if she has them brain-washed.

We just want what's best for our young nephews and be able to give them a chance at a normal life. I truly appreciate you taking the time to compile this information for us so we can proceed the right way!

[Mr. Knowitall]

...step mom is alerted that CPS is coming by and she cleans up and forces the children to lie to the workers.

That's not uncommon. It's often described as a "fire drill".

We just want what's best for our young nephews and be able to give them a chance at a normal life.

Your instinct seems to be that this is time time to act, and I suspect you're correct. When kids are being raised as you describe, they're likely going to have some rough years even if you get custody.