Can a Child Just Be Taken from Guardians

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

My wife and I took in our nephew when my sister was incarcerated for probation violation. We had her sign a guardianship form which was witnessed by an officer at the detention facility. My sisters crimes are check, wire, and credit fraud related.

The father of the child has not been part of the boy's life for nearly 7 years, boy is 9 now. The father is an alcoholic with at least two DUIs, on mental disability, and on his second marriage. From what my sister says the father exaggerated his disability so much that he doesn't receive his checks they instead go to his mother. He was on SSI then got off and started working, but after he and my sister separated he went back on SSI. At some point in the last year my sister filed for and started receiving child support from this SSI check. In May the father took the son and called to claim that he now had custody and stopped the child support. My sister retrieved her child from the local school district. Several weeks later she was picked up for parole violations.

It is at this point that my wife and I came and picked up the boy and got a guardianship form signed. Tonight an officer came to my door with an "Order for ex-parte emergency temporary custody and writ of assistance" and took our nephew claiming our guardianship paper had no standing. This document doesn't explain why a judge decided to reward temporary custody to the parent who hasn't been part of the child's life over the wishes of the mother nor would the officer let me see the entire document. We are going to speak to a lawyer tomorrow. Do we have any hope of getting this temporary custody revoked and having our nephew back? Has the father committed fraud either by exaggerating his disability or lying to the office and claiming he had custody?

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Quoting MantisKnight

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

My wife and I took in our nephew when my sister was incarcerated for probation violation. We had her sign a guardianship form which was witnessed by an officer at the detention facility. My sisters crimes are check, wire, and credit fraud related.

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But the guardianship wasn't completed through the court? When did all of this take place?

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The father of the child has not been part of the boy's life for nearly 7 years, boy is 9 now. The father is an alcoholic with at least two DUIs, on mental disability, and on his second marriage. From what my sister says the father exaggerated his disability so much that he doesn't receive his checks they instead go to his mother. He was on SSI then got off and started working, but after he and my sister separated he went back on SSI. At some point in the last year my sister filed for and started receiving child support from this SSI check. In May the father took the son and called to claim that he now had custody and stopped the child support. My sister retrieved her child from the local school district. Several weeks later she was picked up for parole violations.

It is at this point that my wife and I came and picked up the boy and got a guardianship form signed. Tonight an officer came to my door with an "Order for ex-parte emergency temporary custody and writ of assistance" and took our nephew claiming our guardianship paper had no standing. This document doesn't explain why a judge decided to reward temporary custody to the parent who hasn't been part of the child's life over the wishes of the mother nor would the officer let me see the entire document. We are going to speak to a lawyer tomorrow. Do we have any hope of getting this temporary custody revoked and having our nephew back? Has the father committed fraud either by exaggerating his disability or lying to the office and claiming he had custody?

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Please answer my questions :)

No we didn't take the guardianship to the court it was only meant to allow me and my wife to enroll my nephew into school and be able to get medical attention for him if needed while my sister was in jail. At the time I did not want to have to put my nephew through an ordeal involving the court where I would have to tell the truth about his father. At the time we just felt it was better for him to not have to see his dad that way.
The father's parents are the ones pushing him to get custody as my sister forbid me from letting my nephew go to their house after the father went there and took my nephew, which is when he called SSI and said he had custody.
We have had the child since June. The order was filed 3pm October 19th.

I'm sorry - but the guardianship is not legally enforceable.

The legal parent has every right to custody of his/her child; the fact that you've only had him since June is certainly not in your favor.

In all honesty, Dad has an excellent chance of retaining custody of his child unless Mom is able to do so. You, unfortunately, have little to no chance.

(Your sister doesn't really understand how SSA works in terms of disability payments, btw. It's probably best to forget that angle completely)

I'm don't completely understand. Our household is the Mothers preferred placement for her child as shown by giving us guardianship. My sister has had sole custody of the child since their separation when the boy was 2ish. The father has not been part of his life since that point. Now suddenly he can just swoop in and take the boy who views him as mostly a stranger? He begged us not to make him go how can any court think the fathers home is in the "best interest" over ours?

The father is listed on the birth certificate, but they were not ever married and I don't believe paternity was ever preformed. Does my sister have any way of fighting this while she is in jail, if so any suggestions on what she needs to do?

I have one more question.

How much time is your sister facing?

She has 24 months with transfer eligibility after 12 months.

The emergency temporary custody paperwork says that "the incarceration causes the defendant to be unable to care for the minor child, and the court decides that an emergency situation has arisen."

Wouldn't part of caring for her minor child be arranging for permanent housing and care while she is incarcerated?

I'm sorry, because you're really not going to like what I have to say here.

Dad has an excellent chance - if not a slam dunk - of obtaining full custody of his child within the next year. His rights by far outweigh yours (his are protected by the Constitution; you don't have any). Even if you could somehow successfully respond to the ex parte motion, given Mom's incarceration all that will mean is that Dad will be reintroduced to kiddo over a period of time (assuming that's necessary at all). And after that period he'll likely be the custodial parent.

For Mom, it gets even worse. Once Dad becomes the CP, it's considered permanent unless there is a significant change of circumstance (and her being released does not qualify). She really messed up here - I'm sorry.

Ok, update if you don't mind looking at and giving opinion.

We contacted the family lawyer who has started working on two fronts. One being for my sister answering the "emergency temporary custody and another making our guardianship a court supported one. I see now what you meant about the SSI and it turned out to be a good thing. No court has ever determined the father to actually be the father though his name appears on the birth certificate. Outside the first two years he has never been a custodial parent and in the last seven years has never had unsupervised contact with the child. We do have some rights in the case as in this state the mother did not lose custody due to incarceration and we are the desired placement for her child. The big crux is that we didn't involve the courts in the guardianship when we should have. I kick myself for it, but I didn't want to have to put the child through that.

What was filed ex parte against my sister was something to prove paternity and another for the emergency custody. It looks like he went to a judge and claimed that since my sister was in jail she was not able to care for her child and since our "guardianship" was not formal through the court it did indeed look like there was an emergency situation with the child.

For the first part the lawyer seems to be trying to claim that their was no "emergency" situation as the location of the child was known at all times to the parties involved and that the guardianship document between my sister and I was thought to be sufficient as it was the document that the school counselor and the school psychologist suggested we use. Also that since the child has not been proven to be his, and their was no emergency situation, the custody part shouldn't have went forward until after the paternity part. They can't afford to actually do the paternity part and only added it I guess to give their case weight.

For the second part our lawyer has started the guardianship. I think he is doing two of them? One was a standard and another was an emergency. He wasn't certain if the other side could set a guardian without the court first deeming him the parent, but said if it was him on the other side the first thing he would do is get the grandparents listed as a guardian

A couple of things.

First, if Dad is on the birth certificate paternity HAS been established. He could not have been added without signing an affidavit/declaration of paternity.

Second, you still have no inherent rights here. The right you do have is to file for guardianship and/or custody. And the State cannot override Dad's constitutional rights.

Finally - I'd have a long, long talk with that attorney. Paternity is established - and a guardianship cannot/will not be ordered without Dad being involved somehow. Again, I think you need to be prepared that even if you manage to get something temporary, Dad will - if he wants it - likely end up with full custody.

Is this something you're willing to endure? A long and costly battle only to have to hand over the child anyway at the end of it?

I know this isn't what you want to read but you've got to be realistic and your attorney SHOULD be giving you these same warnings and concerns. If I were in your shoes, I'd be very concerned if the attorney wasn't telling me these things.