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I'm sorry to hear about your situation, and I will do what I can to help. Has the father been in the child's life at all in these past 6 1/2 years? Or did he show up out of nowhere demanding custody?
He has lived here with me rent free for the past 20+ years, he is a long haul truck driver and here some weekends for about 18 to 20 hours. I have made all decisions on my grandson day to day life.
What does he want from you? (that is, is he moving away?)
He got mad a couple of weekends ago and slammed out of the house, stating he was leaving and he was taking Brian with him. Brian told him he was not going with him. Now he is living in his pick up truck at the local truck stop and seeing his son for a couple of hours on the weekend. He has no real plans for the future, because he thinks he has the upper hand because of my devotion to Brian and following his mothers wishes of raising him.
Was there anything in a last will and testament indicating this desire? Were you named guardian of the child by a court?
My daughter did not have a will and I have not gone to court. To quote my daughter, I am Brians god mother so her wishes would be heard from the grave. What I am looking for do I stand a chance of winning this battle, my husband and I can give him a good stable, loving home.
Yes, you absolutely have a good chance of winning this battle. These situations are always fact dependent, but this situation is a bit different than the average custody battle.
First of all, you need to understand that under normal circumstances, only parents (i.e. biological or adoptive parents) have the right to seek custody. For a non parent to even be allowed to file for custody, they must first show extraordinary circumstances. The lead case in New York for the rights of a non parent versus a parent is Bennett v. Jeffereys 387 N.Y.S.2d 821, 40 N.Y.2d 543 (Court of Appeals 1976). In Bennett, the court held that a parent may not be deprived of custody to a non parent "absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances." If extraordinary circumstances are found, then and only then may the court consider granting custody to the non parent if that is determined to be in the child's best interest. But "[a]bsent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition."
But that's under normal circumstances...
Here there would be extraordinary circumstances. I assume that the child has lived with you as well for his entire life as well (assuming that he lived with his father who lived with you for 20 years)..
You have been acting "in loco parentis" (in the place of a parent) as the father is absent almost the entire week.
Furthermore, the father doesn't have any place to stay. Stability is a huge factor that courts consider.
Again, the presumption is that it's in the best interests of the child to be with a parent, but that presumption can be overcome by the evidence against it.
In a custody case, the court will consider a number of factors, such as:
By the way, here it talks about "parents", and that term typically means biological parents, but can also mean individuals "in loco parentis" (in the parent's place) that have acted as a parent (such as you) assuming that you could show those extraordinary circumstances.
A child's preferences will be considered, but the court is not bound by them. In determining how much weight to give the child's wishes, the court must consider the age, maturity, and consider the possibility of parental influence. The closer the child is to eighteen, the more weight will be given to that child's wishes. But the court may disregard a child's wishes in determining what is the best interests for the child. In McCrocklin v. McCrocklin, 77 A.D.2d 624 (1st Dept. 1981), the court disregarded the 15 year old child's preference to live with her mother, finding that the child had not done well living with her mother and had begun to mirror the mother's depression. The court noted that the child's preference was based in part on the lack of discipline at the mother's home. To allow a child's wishes to decide which parent they will live with is reversible error. Bergson v. Bergson, 68 A.D.2d 931(2nd Dept. 1979). For younger children, the wishes of the child give way to why a child prefers one parent or another. Many children do not have a preference, and in fact, should not be forced to choose between their parents.(Bergson).
The court will also give weight to which individual is more stable (mentally, financially, etc...) and the fact that he does not even have a place to stay is very significant, as they're not going to tell a child that he should live in a truck over the place that he's lived for at least the last 6 1/2 years, or his entire life.
(depending on the facts, of course)
Now practically speaking, since you have not been named guardian of the child, if it got contested, you would need to file for guardianship and custody, since he has a de facto custody by nature of him being the father of the child. He might not realize this, but he could compel you to turn over the child if you did not contest it legally in a court of law. If he does do this, you can file for a temporary injunction and guardianship proceeding.
Again, I think that your case is very strong, particularly in light of the fact that he doesn't have a place to live. The court will absolutely consider the "roots" that your grandson has in the community, because the alternative would be that he would have to accompany his father on the long haul trips.
I would be surprised if a court granted him custody, given the circumstances, the choice of your grandson, the lack of stability of the father, the consequences of custody for him (that your grandson would have to uproot), etc...
Again, the normal presumption is that the biological parent will get custody, but these are extraordinary circumstances, and they all point to you having custody for the best interests of the child.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
We can not thank you enough for the information, you have lifted this grandmas heart and given me hope.
My pleasure! I do wish you and your grandon the best of luck in this situation. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!