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Dan
Dan, Retired Lawyer
Category: Family Law
Satisfied Customers: 1164
Experience:  Practice areas included family law, elder law, real estate, and transactions
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Our adopted minor child is currently living with her birth ...

Customer Question

Our adopted minor child is currently living with her birth mother, due to behavior problems. We gave her a temporary guardianship document (and signed it, but she didn''t sign it ) to be in effect for about 8 months, but didn''t file it in court due to the expense. Now, the birth mother is being difficult, and is saying she won''t allow us to temporarily take our daughter out of the treatment center for a family funeral, out of state. The trip is tomorrow, and we have already bought tickets. Help, please.
Submitted: 6 years ago.
Category: Family Law
Expert:  Dan replied 6 years ago.

I'm sorry, but this is not likely to be something that can be resolved, if at all, through any channels between now and tomorrow other than you talking it out with the birth mom.

As part of an adoption there is a complete and total termination (a severance) of all parental rights of the birth parents, and all of those rights are transferred to the adoptive parents. The birth parents are strongly reminded at the court proceeding (if they are participating voluntarily) that once the court hands down its orders they will have NO parental rights of any kind. The intent is to make sure that their expectations match up to reality and that they harbor no reasonable hope of having any parental relationship restored.

However, you have re-bridged that chasm, restored hopes and expectations, and re-granted some form of parental rights to the birth mother through the "temporary guardianship document" that you executed on your own, and through the process of giving the child back to her to live with temporarily. In that process, you have also moved outside of the field of what the law would require of the parties.

In the long run, if the birth mother declines to return the child to you, but asserts some rights in the child by virtue of the fact that you have given her temporary guardianship and you have put the child in her custody and care, it will be a matter that ends up having to be reviewed and decided on by the court. It is one of the court's jobs to sometimes have to play at being King Solomon and somehow form a resolution in a case of conflicting and impossible expectations on both sides.

It may be that the court will rule all is well for you and that the temporary guardianship role was yours to grant and yours to rescind at any time. However, I can't assure you of that. They could also rule that you have restored a significant parental relationship with the birth mother toward her former child, and that once this Pandora's Box has been opened, their relationship has to be honored in some form.

As for the immediate situation, your choices are limited as far as I can see: you can continue to try to talk the birth mom into letting you take the child for this trip; you can take the trip without the child (and tell the people you are visiting that you left her behind with a sitter); or you can skip the trip. However I can see nothing that would allow you to call the law into the equation to lend support to your side. (For instance, if you were to call in the sheriff and ask them to take the child from the birth mom and return her to you, they would throw up their hands, state that there is no clear cut basis for knowing who has the right to the custody of the child in this circumstance, and tell you to resolve the situation in family court.)

I wish I had better answers for you, but you have taken this situation more or less off the map as far as the legal processes and procedures go. There is no blueprint for exactly what you can do next.

Thank you,

Dan

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The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

PS: If an answer appears to you to have been very helpful, or to have taken above average expertise and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say "Thank you". Thanks!

Dan, Retired Lawyer
Category: Family Law
Satisfied Customers: 1164
Experience: Practice areas included family law, elder law, real estate, and transactions
Dan and 8 other Family Law Specialists are ready to help you
Customer: replied 6 years ago.
Reply to Dan's Post: Dan, thank you for taking the time to answer. Some follow up info that should be mentioned (devil in the details!) are that our dtr. is 17 1/2, and at one time, we used to have a pleasant long distance relationship with the birth mother. Because our dtr. was having problems at home following discipline, failing in school, runaway, etc., we thought we'd give it a try, after dtr. told us she was going to stay w/ birth mom, and please sign a temp. agmt. When we did so, we limited the guardianship to health and school areas. We didn't give up our parental rights [we thought], and it was a voluntary letter. We carry insurance for her, and pay some expenses, and XXXX stayed with her two other times, once just for a brief period. B.M. does not want custody, in fact, when XXXX ran away from there, B.M. told her she was no longer welcome in her home, which is why XXXX is currently in a treatment center. I told her she couldn't come home here, until she successfully completed the course of treatment, at 18, or over, and was willing to follow house rules, including taking her medication. The birth mother has been spiteful before, and is again doing it. This is a close relative to each of our family, and our dtr. wants to attend. We will return her to the Center in 5 days, and she is not missing school. It was a private adoption, if that is germaine. We emailed B.M. yesterday, to tell her to pls. give permission, but she's not replying.

She has done numerous things to our dtr. which we don't approve, and we're content having dtr. in a good treatment center.
Why can't we simply retract, in writing, the paper we wrote up, that, as I said, B.M. didn't sign?
Expert:  Dan replied 6 years ago.

Thanks for the additional details. It sounds like you are not so much fighting the birth mom in this instance as she is just being stubbornly uncooperative and intentionally staying out of touch.

If I am reading you correctly, what you gave the birth mom was more like a permission slip to take care of details while daughter was staying there than any form of a temporary guardianship. That shouldn't confer any legal rights to the birth mom. (You didn't transfer any rights to her, you merely empowered her to be able to make some health decisions for the daughter, etc., in your temporary place.) If XXXX is a resident at that the treatment center, and not currently at the birth mom's home, it appears that you should be able to give the notice yourself to the treatment center that she will be pulled out for the duration of this trip.

I don't know the exact language of the document you prepared, but whatever permissions you had the legal authority to create you also have the legal authority to rescind provided you did not transfer away those rights.

If XXXX is at the treatment center under her birth mom's signature for the admission, than it may appear to require the birth mom's signature to sign her out temporarily for the trip. However, I'm guessing that the treatment center is aware of these family details. I would expect that they would honor your legal parental authority if pushed to do so. You are still legally the parents, and birth mom only had whatever power to make decisions for XXXX as you shared with her.

Thank you,

Dan

--------------

The information provided is general in nature only and should not be construed as legal advice or to create an attorney-client relationship. You should always consult with a lawyer in your state.

PS: If an answer appears to you to have been very helpful, or to have taken above average expertise and/or research, or if the answer shows an above average amount of time and dedication devoted to your issue, a bonus is nice way to say "Thank you". Thanks!

Customer: replied 6 years ago.
Hi, again, Dan,

Thanks so much for the clarification, and wanted to let you know that the birth mother finally gave permission for our trip, and now we are all back from it, our daughter to the treatment ctr.

Is there any way that you could pls. remove her name from the second question,and your answer, to protect her privacy , please?
Expert:  Dan replied 6 years ago.

Thanks for getting back to me. Glad to hear that it worked out that way!

I'll pass on the request to remove her name from those two posts. It will show as an XXX after they edit.

Take care!

Dan

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