Obtaining Custody of Nephew

My question involves a child custody case from the State of: VA/NC
My husband had his nephew over to stay for the holidays – August 2011. After the holidays, he decided (without my consent) along with his sister that he wants to have custody of his nephew. The reason for this is that his sister is mentally unstable, refuses her medications and is recently out of a job. The boy’s father is active in his life but they have been divorced for about 10 years and he is a registered sex offender in NC. We live in Virginia and the rest of the family lives in NC including the boy’s mother and father. My question is can my husband obtain legal custody of the boy on his own even though he has two kids with me and I live with him, our kids and his nephew at this point? Does the boy’s dad have any rights even though he is s registered sex offender? Do I need to consent to this petition?

Your consent is absolutely not required.

Unless the child's father's rights have been terminated in court, Dad can file for custody himself. Given that Dad is active in his life, it would appear that he still has rights.

Has your husband talked to Dad about things? Because Dad's consent will be required.

If the child's mother no longer wants custody, assuming his father still has rights, his father would have the option of taking custody. We know nothing about any custody or visitation orders that are presently in effect, nor what role the child's father is presently playing in his life - please fill us in.

The fact that dad is a registered sex offender does not, of itself, mean he cannot be the custodial parent.

As it stands, you should anticipate that you'll need the father's consent, express or as implied through the non-response to court action, to any effort to gain custody or guardianship.

My husband does not have the Dad's consent. I know that he is upset about this decision but he may not know his rights as a father, given that he is a registerd sex offender. I know the boys craves for his Dad. My husband and his family are not on good terms with the man and wish they could deny him any and all rights to his son.

That's not the family's decision.

The court apparently does not believe he is unfit; yes, even registered sex offenders can have custody of their own children.

Thank you for your information. I was wondering if VA had jurisdiction to even decide this child custody case. The boy has been in VA since August 2011. He came for a short vacation for the summer and has stayed here since. He has been enrolled in school. I thought schools were supposed to require parent consent or proof of legal guardianship?

Mr Knowitall, thanks for your insight. AS far as I am aware there is no formal custody or visitation orders. This petition filed in VA is the first legal proceeding related to the boy's custody. It was filed primarily to enroll the boy in school. The father visits with him sometimes (when he was in NC), sends him money when he can and also has the boy along with his sister over to his place sometimes for the weekend. He has called once to talk with the boy and I know he wants to call more often but the uncle (my husband) is not willing to allow such access. The boy's mom because of her unstable mental condition is being told what to do by her brothers and everyone else.

Can the family simply move the boy from NC to VA without any due consideration to his father's rights? The petition has been filed in VA court and the first hearing date is pending. I know notices have been served to the mom and dad. I amnot sure if the dad intends to show up. I thought VA will pass on this petition since the boy and all his family is from NC?

coolchic, It is not cool to try and steal someone elses kid. Further, the law does not allow it. Hubby will need to have both mom and dad give permission. You and hubby should be in jail for unlawfully keeping someone elses child because it appears you are actively discouraging his parents from getting their child back.

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Quoting Mr. Knowitall

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If the child's mother no longer wants custody, assuming his father still has rights, his father would have the option of taking custody. We know nothing about any custody or visitation orders that are presently in effect, nor what role the child's father is presently playing in his life - please fill us in.

The fact that dad is a registered sex offender does not, of itself, mean he cannot be the custodial parent.

As it stands, you should anticipate that you'll need the father's consent, express or as implied through the non-response to court action, to any effort to gain custody or guardianship.

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The mother is really being manipulated by her family because of her mental state. Although she is deemed fit to live alone and not a a danger to anyone or herself. There was no formal custody arrangment in place until this petition for custody by his uncle in VA. This was primarily done to enroll the boy in school. The boy's father wants to talk to him at least and will also like to have the boy live with him someday, although he is not financially stable. I know he gives him money and used to have him and his sister occassionally for weekend visits. Because he is a registered sex offender the family does not want him around the children or their mother.
My question is, can the VA judge even rule on this case given that the boy's roots, family and everything has been in NC until 3 months ago?

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Quoting coolchic

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I was wondering if VA had jurisdiction to even decide this child custody case.

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Custody? Or guardianship?

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Quoting coolchic

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The boy has been in VA since August 2011. He came for a short vacation for the summer and has stayed here since. He has been enrolled in school. I thought schools were supposed to require parent consent or proof of legal guardianship?

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I can't speak for your school district. Perhaps they deem proof of residency to be adequate for enrollment.

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Quoting coolchic

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The petition has been filed in VA court and the first hearing date is pending. I know notices have been served to the mom and dad. I amnot sure if the dad intends to show up. I thought VA will pass on this petition since the boy and all his family is from NC?

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The child is in Virginia, and is enrolled in school in Virginia, so that may be sufficient for the probate court. If all interested parties are given notice and nobody challenges jurisdiction or questions whether the child's domicile somehow remains in North Carolina, the court is apt to accept that it has jurisdiction.

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Quoting Mr. Knowitall

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Custody? Or guardianship?

At this point it is a custody petition

I can't speak for your school district. Perhaps they deem proof of residency to be adequate for enrollment.
Okay.
The child is in Virginia, and is enrolled in school in Virginia, so that may be sufficient for the probate court. If all interested parties are given notice and nobody challenges jurisdiction or questions whether the child's domicile somehow remains in North Carolina, the court is apt to accept that it has jurisdiction.

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At this point it is a custody petition. Not guardianship. The school demanded to see the petition before they will enroll the child.
Oh okay. For some reason I misunderstood and thought since the child has not been in VA for six months, they would automatically send all parties to NC. My husband tried this in NC and was told that unless the Dad was proven unfit he will not get custody. This is one other reason he brought it to VA. Thanks for the clarification. We will wait and see what happens. I do not know whether the Dad knows he has any rights. I do not have any way of contacting him and I do not even want to get involved.