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dkennedy
dkennedy, Attorney at Law
Category: Family Law
Satisfied Customers: 6005
Experience:  JD Degree, Social Service Experience, Child Support Officer
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my mother-in-law is fighting my husband and myself for custody

Customer Question

my mother-in-law is fighting my husband and myself for custody of my husband's daughter which he has custody of since 2002. Before we met 2 1/2 yrs ago they all lived together at her house and now that we are married she wants to fight us for custody. We go to court Aug llth in Fl. she has money and lawyer and she knows we can not afford one as we close on our house in August. She did file false abuse charges and the case was closed in just a few days the case workers were quite upset with her and they said dont let her win can my husband and I defend ourselves or are we doomed?
Submitted: 4 years ago.
Category: Family Law
Expert:  dkennedy replied 4 years ago.
Chat Conversation Started
dkennedy :

Hello, I would like to answer your question, but I need more information.

dkennedy :

How old is the child?

dkennedy :

Where is the child's mother, and what happened that she does not have custody?

dkennedy :

How long did your husband and the child live with his mother? Did she keep her for a while, even after you were married?

dkennedy :

What are the grounds she is using in the court papers to get custody?

Customer:

child is 9 years old as of march 19, 2010. The mother gave her to some people when she was a baby and said she did not know who the father was and the childs birth certificate was even changed to their name. Major and his mother filed for custody, his mother paid for the atty thinking that since she had the money and good job and he lived with her in her house that she still lives in, she would get custody or so her atty assured her, but the biological mother never showed up in court and it was considered abandonment and my husband received full custody of her. His mother told him that they had shared custody and later told him that she had full custody of his daughter. They lived together until 2008, when we met and he moved in with me around Sept of that yr. she said he could not have his daughter until he was sure that our relationship would work, then it was wait until last summer when school would be out, then it was when we were married which was Dec 19,2009, then she stated that if we waited til school was out in June she would not fight us and we could have her. Also,October 9, 2009 is when we found out that his mother was lieing to us. We went to the courthouse in Volusia County and got verified papers of all pertaining to his daughter and found out that he has always had custody of his daughter and she had no shared custody and never got her lawyer to get full custody as she told him. She tried abuse and could face some charges for false accu. so now she says it is abandonment on our part. She claims that we only saw her once in 2008, 4 in 2009 and once 2010, which is not true. We also have been paying for her health ins since Jan 2010 and before that she had medicaid. She has been on our lease for over a year. Also she signed for his car in 2008, and we put the down payment, and pay her every Feb for the yr. out of our tax return and when we would not bring his daughter back she had the car towed to her house. He told her to divorce me and bring his daughter and himself home or she would do what she is doing currently trying to get his daughter. She also yells at her because she calls me mom and not her anymore. She does not want to be called grandma and she is on meds for depression and anxiety. She works at a bank so she thinks she can win because she has come into some money.

Customer:

I need a reply to my question before hitting the accept button. I have left you additional information as you requested. Thank you in advance.

Expert:  Steven K. replied 4 years ago.
In Florida, when the court determines child custody, a nonparent, such as a grandparent, may only be awarded custody of a child when clear and convincing evidence has been presented demonstrating that the child’s mother or father, or both are unfit and threaten the welfare of the child. Courts have repeatedly determined that parents have a natural and legal right to the custody of their children which the Constitution protects. Depriving parents of their natural right to parent is a drastic measure and in such circumstances the courts often proceed with caution.

In Florida, although grandparents have standing to bring a custody action against a child’s parents where the parents have relinquished custody, as it appears you have done, although unintentionally. Leaving your daughter with another person may also be considered in determining fitness to parent.

The next, and more difficult step for the grandparent, is to establish why he or she should have custody of the child rather than the natural parent. In making the determination of whether a nonparent should obtain custody of a child rather than the natural parents, the evidence must clearly and convincingly demonstrate that the parent is “unfit,” meaning they lack the adequate ability to care for their child. A court must then decide whether it is in the child’s “best interests” to remain with his or her natural parent or whether it would be better for the child to live with the grandparent. The botXXXXX XXXXXne is this – the grandparents must prove to the court that the child’s parents are unfit in some significant way! Because the right to parent a child is a fundamental right, the courts will not intervene unless there is a clear and convincing showing that significant harm to the child is threatened if the parent retains custody. In evaluating the fitness of the parent the court will look to several factors, including: (1) parent’s moral unfitness (and if this bears on the child’s welfare – including if parent’s sexual conduct has had an adverse impact on the child); (2) whether the parent has a clear pattern of irresponsibility in the parental role; (3) the parent’s health, both mental and emotional; (4) any sign of alcohol or drug abuse; and (5) adultery or marital misconduct (but it must have a direct affect on the child). It is up to the a grandparent to clearly and convincingly show evidence of the parents’ unfitness (using these factors as guidance), and both parents are found by the court to be unfit, the court will award custody to a close relative who is fit, ready, willing, and able to maintain custody of the child– which in this example, is the grandparent.

Where children are of sufficient age and intelligence, Florida courts have given credence to the child’s own preference in its determination of whether to place the child with his or her natural parents or a nonparent, like the child’s grandparent. But it is important to realize that this is just one factor the court will look to, and in no way controls that court’s final decision. And second, a court has the option to only award a grandparent temporary custody until the parent can establish that they are “fit” to parent their child.

 

This is not to say that the grandparents cannot get a temporary order giving them custody, pending a full trial of the facts. However, if grandma cannot prove by clear and convincing evidence that dad is unfit, the court should allow dad custody of his child.

 

So, having an attorney and money is not a sufficient basis for grandma to get a custody order. However, if she is able to convince the court that the parents are unfit, she may be able to get custody. If you do not have money for an attorney, I urge you to contact the legal services agency that serves your area. You can find them at http://www.floridalawhelp.org/FL/index.cfm/County/Clay/City/%20/demoMode/%3D%201/Language/1/State/FL/TextOnly/N/ZipCode/32043/LoggedIn/0 as well as a lot of legal information that might be helpful to you on other matters. The agencies listed on this website provide free legal services to low income people in Florida and if they cannot help you, they may have referrals to other agencies that can.

Expert:  dkennedy replied 4 years ago.

Hello,

 

Another expert lent his opinion, but I would like to add some information which I think is important.

 

All through the information you provided, you did not mention anything about the girl herself. She apparently was left with some people who were raising her since a baby, and then was moved to her father and grandmother's home. Then, father moved out (married you) and was with grandmother for apparently at least 2 years. Then she came to visit father once time a few months ago, and has not been allowed to go back to grandmother's and I assume not visit her either.

 

Now, I fully understand why you and your husband are upset with his mother over this, but consider what the court will think when they set out of the facts of what this little child has already gone through. What I am trying to say is--what about the girl? Is she mixed up, after having a real mother who abandoned her and now you are the third "new mother" that she has had? Does she consider your mother in law's home as her home? It is a wonder that she is not in therapy.

 

The judge will surely be trying to consider what is best for the child, and no where in all of this, does anyone seem to be worrying about this.

 

I would suggest you have her evaluated by a child psychologist, or possibly a school psychologist and have a report written. Someone has to convince the court that her father's home is where she belongs and is doing well there.

 

Just telling that your mother in law is depressed, not doing the right things, etc. is not going to do it when you're litigating custody. You need to show what's good for the daughter.

 

I would certainly not tell the court about your husband not knowing if he had custody or not, so he just left his daughter with his mother. That is hard/impossible to believe.

 

Go into court trying to convince the court that his daughter is where he should be, and that he can be a great parent.

dkennedy, Attorney at Law
Category: Family Law
Satisfied Customers: 6005
Experience: JD Degree, Social Service Experience, Child Support Officer
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