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  1. #1
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    Mar 2018
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    San Bernardino, CA
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    Default Can a Mentally Ill Parent Sign Over Guardianship of a Child

    My question involves a person located in the state of: California

    I am seeking information on behalf of a client. I work in homeless services.

    My client is an adult male - let's call him D. D recently got his own place with his wife and kids. D's mother has a documented mental illness, is homeless and a drug addict. D would like to take guardianship of his little brother (age 9), who has already been staying with him for the last month or so and is well taken care of. D states that his mother is willing to "give" his little brother to him and will sign whatever he needs her to sign (I have NO idea if this is how guardianship works). Little brother's father is deceased, so he receives survivor's benefits with mom as payee. As far as I know, there is currently no open CPS case. Although mom has been agreeable, she IS volatile, and D is worried that she will one day retaliate for "harboring" the boy.

    My questions are:

    - Is there such thing as a parent "signing over" guardianship of a child? If so, how does her documented mental illness (or other factors) come into play? Where do we start?
    - If NOT, what are the options for guardianship? I don't think this situation warrants a CPS report, as the child is not being abused or neglected. D's financial resources are limited and attempts to visit or contact local legal aid clinics have been fruitless.
    - If there are no options for guardianship, what legal repercussions could D face for "harboring" his little brother, if any?
    - D did not add his brother to his lease because he assumed that he couldn't, since he's not his guardian - is this correct?


    Any insight is greatly appreciated!

  2. #2
    Join Date
    Oct 2014
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    8,238

    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    The parent may allow the child to stay with his brother and may provide a power of attorney (POA) allowing the client to do things like take the brother to the doctor, etc. However, as the mother she may end that at any time unless her parental rights have been terminated or there is a court order that grants guardianship or custody to someone else. So if your client wants to get guardianship/legal custody that the mother cannot revoke at any time he needs to get to a family law attorney and find out how likely it is that he could win and what that will cost him. However, the fact that D is apparently not on really sound financial footing yet may make things more difficult, both because he needs to show he can provide for the child’s needs to get the guardianship and because it costs money to litigate to get the guardianship.

    As to the question about the lease, whether adding the kid as a resident of the unit will be a problem depends on the terms of the lease and the attitude of the landlord.

  3. #3
    Join Date
    Oct 2006
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    16,474

    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    If mom is in agreement both mom and big brother sign a stipulated agreement for guardianship. Once that is signed big brother files it with the court and gets a judge to sign off on it.

    Its really better to use an attorney for this. It won't be all that expensive if everyone is in agreement.

  4. #4
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    Jun 2014
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    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    Mom may not be agreeable when she learns she will no longer be the Representative Payee for the child's Survivors Benefits.

    The monthly benefits are meant to be a portion of the child's financial support. I agree the brothers financial status might cause problems

  5. #5
    Join Date
    Jan 2015
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    1,142

    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    Exactly. What you have to realize when you are working with low income people who are in the borders of financing and are generally on public assistance of some kind is that any child they have is a cash cow. If she is a single mom with a dependent child, she'll get more benefits, more assistance, more aid in all ways than if she is just a mentally ill person on the streets. If this child is receiving Social Security death benefits, any assistance even if the mom is just receiving SNAP or any kind of assistance, the mom may be okay with him living with the brother, but when push comes to shove, when the brother wants legal custody of the nine year old, the mom may suddenly realize that this could cause her to lose some financial assistance. If he wants guardianship I suggest the brother speak with Legal Aid or his own attorney, and get the whole process spelled out for him, gets the mom to sign and has it done so that it is a done deal before Mom can change her mind.

  6. #6
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    Mar 2018
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    San Bernardino, CA
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    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    Quote Quoting llworking
    View Post
    If mom is in agreement both mom and big brother sign a stipulated agreement for guardianship. Once that is signed big brother files it with the court and gets a judge to sign off on it.
    It sounds like this is what D has in mind. If mom is mentally incompetent (I'm not sure who would make this determination), does anything she sign even hold any weight?

    Quote Quoting comment/ator
    View Post
    Exactly. What you have to realize when you are working with low income people who are in the borders of financing and are generally on public assistance of some kind is that any child they have is a cash cow. If she is a single mom with a dependent child, she'll get more benefits, more assistance, more aid in all ways than if she is just a mentally ill person on the streets. If this child is receiving Social Security death benefits, any assistance even if the mom is just receiving SNAP or any kind of assistance, the mom may be okay with him living with the brother, but when push comes to shove, when the brother wants legal custody of the nine year old, the mom may suddenly realize that this could cause her to lose some financial assistance. If he wants guardianship I suggest the brother speak with Legal Aid or his own attorney, and get the whole process spelled out for him, gets the mom to sign and has it done so that it is a done deal before Mom can change her mind.
    Yes, I definitely see my share of parents abusing the system Thanks for your input!

    Quote Quoting Taxing Matters
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    So if your client wants to get guardianship/legal custody that the mother cannot revoke at any time he needs to get to a family law attorney and find out how likely it is that he could win and what that will cost him. However, the fact that D is apparently not on really sound financial footing yet may make things more difficult, both because he needs to show he can provide for the child’s needs to get the guardianship and because it costs money to litigate to get the guardianship.
    Very good point. Do you see any cons to just continuing the way things are and wait to pursue guardianship? Like mom calling the cops to get her boy back? I didn't mention that mom does NOT know where they moved to (because she had a habit of coming over high and he doesn't want to jeopardize his housing). So I can see how this could be considered kidnapping.

  7. #7
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    Oct 2014
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    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    Quote Quoting kbnaz
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    Very good point. Do you see any cons to just continuing the way things are and wait to pursue guardianship? Like mom calling the cops to get her boy back? I didn't mention that mom does NOT know where they moved to (because she had a habit of coming over high and he doesn't want to jeopardize his housing). So I can see how this could be considered kidnapping.
    I see a potential problem in hiding the child from the mother. As things stand right now, the mother is the one with the sole right to custody of the child and if she ever wants to end the current situation and pick up the child she absolutely has the right to do that. Hiding the child from her hinders her from doing that and could indeed result in legal trouble for D. Although I think kidnapping charges are unlikely, there still could be unwanted legal problems that result from hiding her child from her. D really ought to see a family law attorney to sort out his options and how best to go from here.

  8. #8
    Join Date
    Mar 2018
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    San Bernardino, CA
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    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    Thank you!

  9. #9
    Join Date
    May 2014
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    211

    Default Re: Guardianship of Sibling Mother Mentally Ill, Homeless

    Guardianship/custody is very simple if both parties agree. Having a lawyer is not normally required. You go to the court, file the papers for custody (sometimes referred to as guardianship), get a court date, see the judge, have him rule. Some states will route this through an arbitrator and then that person makes a recommendation to the judge who will approve/reject. Sometimes the judge may rule for more information and bias opinions (doctor's reports, financial evidence to support, social service report, etc). Your situation is the mother's mental health condition. You may have to prove she is capable of making this decision on her own.

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