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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 35631
Experience:  I provide family and divorce law advice to my clients in my firm.
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My daughter died on October 28, 2013 and is survived by her

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My daughter died on October 28, 2013 and is survived by her 15 year old daughter. My daughter and the biological father of my granddaughter never married but lived together a few years before my granddaughter was born and separated when she was around two. My daughter met someone later and they were together for over 10 years and my granddaughter lived with them. He has been more of a dad to my granddaughter than her biological father. They were recently married in August 10, 2013. My question is who has the right to be guardian or have custody of my granddaughter? The biological father has been known for manufacturing meth. I am concerned for the well being of my granddaughter.
Jane
Submitted: 5 months ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 5 months ago.

Thank you for your question. Please permit me to assist you with your concerns.

 

Jane, by law until the biological father's rights are terminated OR the other parent formally adopts the child, he is still the legal primary. Under law the other spouse is a 'legal stranger' who has no inherent right to the child directly. He can file for rights by claiming that he has the closest bond, but historically courts favor biological parents in this situation. The primary right is still the bio parent, but you as a grandparent can challenge it yourself and potentially file for your own guardianship, especially if that parent has been neglectful or missing from that child's life.

 

Hope that helps.

Customer: replied 5 months ago.

What if the biological father is unfit, doesn't have a job and was behind in his child support payments. Most of the time his mother paid to keep him from going to jail. His mother is wanting to be the guardian but my granddaughter does not want to live there because of her father and half brother lives there too. She wants to live with the only dad she has known. Is there a way that the other grandmother and the one that her mom married to have joint guardianship?

Expert:  Dimitry K., Esq. replied 5 months ago.

Jane,

 

Those three things you mentioned (unfit, has not job, and behind on support) are all different and please allow me to define them separately.

 

Someone is 'unfit' if there is a history of abuse, neglect, domestic violence, drug use, alcohol abuse, criminality, moral turpitude, and the like. But those factors have to be proven in court. By default he has a right to his child until and only until it is challenged in court.

 

Not having a job is not usually a factor in being a parent or having parental rights. Being behind on child support payments is now a non issue (and itself is not a factor in being a parent). Here, the two closest people who can challenge custody are either you as the maternal grandparent, and the other paternal grandmother. The other person is not a parent and has no standing, and the courts would not grant joint guardianship. I suspect that if you want the child to remain with you or with the other spouse, you would have to challenge custody via the courts yourself, as the other spouse has no legal basis of doing so successfully, or rather his chance at success is very very low.

 

Good luck.

Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 35631
Experience: I provide family and divorce law advice to my clients in my firm.
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