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  1. #1
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    Default When the Primary Parent Dies, Who Gets Custody

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

    My sons father and I filed for and were granted joint custody in the state of California in 1996. He was granted physical custody and was allowed to move to Louisiana. They have been living there for the last 13 years. However, my son visits me every year during the summer and holidays.

    Last week my son's father passed away and I want to bring my son home with me to California. When his father started getting sick, he signed custody over to his sister (my son's aunt), without my knowledge. Now she will not give me my son.

    Was he allowed to sign custody over to her without my knowledge since we originally had joint custody? Can I take my son home? Please help

  2. #2
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    It is your son. Go and get him. Take the police with you if you must.

  3. #3
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    Agreed. You have a court order to back you up...remember the court gave joint custody to you and your ex. Take your son home!

  4. #4
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    OP...

    The custody order was done in CA. Has venue ever been changed to Louisiana??? Probably not, because you're still in CA.

    Here's what you need to do before you go get your son (which you need to do). Go into court on an exparte motion which requests that the court grant you sole custody of your son on the basis of your ex dying. Once the order is signed.... go get your son, with the police if necessary.

    Sorry for the loss.
    If you wanted babies all to yourself, you should have created them by yourself. Until you do that, children have the right to BOTH parents, especially since you found them suitable to procreate with.

  5. #5
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    In addition: Don't forget to take documentation of your ex's death to court with you.

    The reason why you want to get the order in hand before you go get your child is because the police may see this as nothing more than a custody dispute and they may refuse to get involved without an order stating you have custody and they are now withholding your child.
    If you wanted babies all to yourself, you should have created them by yourself. Until you do that, children have the right to BOTH parents, especially since you found them suitable to procreate with.

  6. #6
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    Oh for gosh sake. You cannot "sign over" custody of a child. At best, you can set up a guardianship but that is not going to hold up when the mother comes a calling unless mom had been restricted from seeing their child.

    Since there was joint custody, and one parent is deceased, custody is now in the hands of the mother.

    It is the OP's child and that is all there is to it. There is no reason to believe sis has any legal custody of the child.

  7. #7
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    Nov 2008
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    an exparte was filed in louisiana granting temporary custody to the surviving sister. What is our next move? Can we still file an exparte in California?

  8. #8
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    well, either you left this out or you have discovered new info. It does change things.

    the easiest way; hire an attorney to do this for you.

    What I would do is call the courts in La that granted the temp custody to the sis. I would suggest they granted this temp custody only to avoid placing the children in foster care until you, the proper custodian, were notified and allowed to retrieve your children but who knows what the courts were told to gain this temp custody. An odd way of doing it but who knows what they were told.

    They may not even be aware of you and your custody order. So, to avoid a prolonged ordeal after you get to La, to pick up your children, I would either hire an attorney in La to advocate for you or contact the courts there yourself.

    I do not see a reason not to do as court clerk suggested. It may help but I'm not sure though as it appears La believed they had jurisdiction in this matter and whether you have split custody or full custody, I am not sure their courts would care. You are essentially arguing against the La courts and they should respect the order you have now and release the children to you so it may simply be they were not informed about you and your true rights.

  9. #9
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    There were several questions that I asked that you did not answer.... therefore, I cannot be of assistance to you until you do.

    However, get an attorney.
    If you wanted babies all to yourself, you should have created them by yourself. Until you do that, children have the right to BOTH parents, especially since you found them suitable to procreate with.

  10. #10
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    Default Re: When the Primary Parent Dies, Who Gets Custody

    Quote Quoting jk
    View Post
    It may help but I'm not sure though as it appears La believed they had jurisdiction in this matter and whether you have split custody or full custody, I am not sure their courts would care. You are essentially arguing against the La courts and they should respect the order you have now and release the children to you so it may simply be they were not informed about you and your true rights.
    You see, there's this little thing in the law called UCCJEA, NO court can ignore. These aren't suggestions that they can choose to respect or not. If CA has jurisdictioin, they continue to until they relinquish it, not until LA decided that they just want to butt in. Doesn't work that way.

    The OP sent me a PM and asked me some questions, in turn I asked her some and asked her to post the answers on the forum. She neglected to do so. The most important being, was she served with this ex parte? It's quite possible that SIL knew nothing about CA having jurisdiction, the LA courts weren't made aware, or simply.... no one said anything and LA didn't do any research on the matter. This is now a potential jurisdictional fight and the OP is going to have to attack the order based on that, which includes a motion to vacate.
    If you wanted babies all to yourself, you should have created them by yourself. Until you do that, children have the right to BOTH parents, especially since you found them suitable to procreate with.

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