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Barrister
Barrister, Lawyer
Category: Family Law
Satisfied Customers: 34262
Experience:  Attorney with 16 years experience
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My brothers sons have lived with me their entire lives, they

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My brothers son's have lived with me their entire lives, they are 4 and 2 years old. Our mother and brother also live with me and we have cared for them. The parents have lived together for years and have chosen not to care for the boys. The youngest was born with meth in his system and Arizona CPS was involved. The mother went to counceling and now has it on her record. She has a record of neglect and drugs involving her two oldest children. I want to know if I have an grounds for primary custody? Neither my brother nor the mother have assisted in their care or support in any way.
Hello,
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Under AZ law, persons other than a child’s natural parents may file for custody of a child only if the child is not in the physical custody of his or her parents. So you could meet that requirement.
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25-401. Jurisdiction; commencement of proceedings

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A. Jurisdiction for child custody proceedings is governed by chapter 8 of this title.

B. A child custody proceeding is commenced in the superior court:

1. By a parent, by filing a petition for either of the following:

(a) Dissolution or legal separation.

(b) Custody of a child born out of wedlock if there has been a prior establishment of maternity or paternity.

2. By a person other than a parent, by filing a petition for custody of the child in the county in which the child is permanently resident or found, but only if the child is not in the physical custody of one of the child's parents.

3. At the request of any person who is a party to a maternity or paternity proceeding pursuant to chapter 6, article 1 of this title.

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If you have been the de facto guardian of the children since birth and provided for their support and maintenance, then I would opine that you would have grounds to seek a guardianship for the children as well as full custody. Assuming that neither birth parent objected, the judge would likely rule that the guardianship was appropriate.
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Both biological parents would have to be notified of the guardianship petition and have an opportunity to appear and object to it if they chose to. The judge would then make a ruling based on what he thought was in "the best interests of the children". Since you have cared for them since birth, I would opine that the judge would find it was in their best interests to formalize what has essentially been an informal guardianship.
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Thanks.

Barrister

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Please remember to rate my answer. I will gladly continue our discussion until you have gotten the information you need.

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If you need further help, just reply to me via the “REPLY” or “CONTINUE CONVERSATION” button.

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Please keep in mind that I am trying to help you understand and resolve your situation. I don't make the laws, I am just reporting or interpreting them, so the outcome may not be what you had hoped for.

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Please be patient as I am typically working with several customers at any given time. Some answers take 5 minutes, some 35 minutes. But rest assured, I will get back to you.

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I am not entering into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. With that in mind, do not post any specific information you do not want available for public viewing. The information provided is not a substitute for a local attorney’s legal advice.

Customer: replied 4 years ago.
I predict that the mother would object, what are the odds from that angle? With her drug history, she completed counciling, they have stayed with me through it all.
Well, even if mother objected, the judge would still be able to rule in your favor if he felt that it was in the children's best interests and she doesn't have actual physical custody. Courts are reluctant to upset a family living arrangement if the children are used to it and are thriving and are more likely to simply formally recognize it.
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If she objected, you would have to provide testimony and evidence that she has not sought physical custody of the children due to her drug problems and that it would be detrimental to the children to be removed from your care at this point. With a parent who has a history of drug abuse, the court is more likely to award liberal visitation rights than run the risk of transferring the children to a parent that could have future relapses and put the children in danger of abuse or neglect.
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Additionally, if the father was to support the petition, that would also strengthen the request.
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Thanks.

Barrister

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Please remember to rate my answer. I will gladly continue our discussion until you have gotten the information you need.

.

If you need further help, just reply to me via the “REPLY” or “CONTINUE CONVERSATION” button.

.

Please keep in mind that I am trying to help you understand and resolve your situation. I don't make the laws, I am just reporting or interpreting them, so the outcome may not be what you had hoped for.

.
Please be patient as I am typically working with several customers at any given time. Some answers take 5 minutes, some 35 minutes. But rest assured, I will get back to you.

.

I am not entering into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. With that in mind, do not post any specific information you do not want available for public viewing. The information provided is not a substitute for a local attorney’s legal advice.

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