My brother lives in Santa Rosa County, Florida, and has two children with his ex-wife. He was put in jail in the fall of last year, and he may be looking at prison time. His wife was just released from 3 years of prison a few months later.
Well before he was incarcerated, my brother gave my aunt (the children's great aunt) Power of Attorney. After he went to jail, my aunt filed for temporary custody in the family law court and got my brother's signed affidavit to do so. The ex-wife was still in prison, so because my aunt was caring for the children full time, a summons was issued, and she never contested it within the given time period. After the ex-wife was released from prison, she was given only third party visitation rights and my aunt still has temporary custody. The mother has only visited the children a few times since and has done little to show any positive influence in their lives.
Recently, my aunt asked us to take over custody of the children due to health problems. My brother has also expressed his desire to have us take the children. However, the ex-wife is bipolar, doesn't seem like us, and would surely object. Our expectation in receiving temporary custody of the children, is that my aunt and brother will sign affidavits for us to take custody, but we will probably have to serve a summons to the ex-wife to appear at the court hearing.
The problem that we have come across is in Florida Statute 751.02, as well as in the form to petition for temporary custody. Here is the exact wording of the latter:
"You may file a Petition for Temporary Custody if: You have the signed, notarized consents of the child(ren)’s legal parents- OR You are an extended family member who is caring full time for the child(ren) in the role of a substitute parent and with whom the child(ren) is (are) presently living.... If Petitioner does not have the signed consents from both parents or is not caring for the child(ren) full time as a substitute parent, Petitioner cannot obtain temporary custody under Chapter 751, Florida Statutes."
The problem is that A) one parent probably won't give signed consent and B) we live in Georgia and obviously aren't currently caring for the children full time (my aunt is).
My question is, even though she is not a parent, does the signed affidavit of my aunt, the one that currently has custody, count for anything? Or does the fact that the children's mother may not sign the affidavit mean that we'll have to somehow care for the kids full time BEFORE we file all this? If so, how long do we have to be full-time caregivers?
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