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My daughters friend has lived with us last 11 months while

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My daughters friend has lived...
My daughters friend has lived with us for the last 11 months while her mother was in the hospital fighting cancer and her father is incarcerated. The mother passed away and her aunt wants to take her. Her incarcerated father wants her to stay with us until he gets out
Submitted: 1 year ago.Category: Estate Law
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3/2/2016
Estate Lawyer: LegalGems, Attorney replied 1 year ago
LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 10,930
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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I am very sorry to hear this; what state is this in regards to? Also have there been any court orders re: custody/guardianship?

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Customer reply replied 1 year ago
It is in the state of Michigan. Grand Rapids to be exact. From what I'm told by her aunt her mother stated that's what she wished would happen that she would go with her aunt. I do not know if there was a will. Her daughter does not Want to leave our house. And her father wants her to stay here as well
Estate Lawyer: LegalGems, Attorney replied 1 year ago

OK; and were the parents married or separated; if separated, was there any court orders re; child custody?

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Customer reply replied 1 year ago
Never married... No papers
Customer reply replied 1 year ago
They split time. Usually he had her on weekends
Estate Lawyer: LegalGems, Attorney replied 1 year ago

Thank you for that information.

So the father has no legal rights re: custody or visitation until paternity is established in the courts. This can be done by petitioning for a paternity order, which requires a DNA test. If the petitioner is determined to be the father, then the father would become the child's legal guardian.

However, if the father is unable to care for the child, 2 things may happen:

1. the father will be allowed to appoint a guardian for the child, so that the child will have a guardian while the father is in prison

2. the court may terminate the father's parental rights, if they deem that the father is an unfit parent. In that case, an interested party (ie person nominated in will, family friend, relative) may petition the court for guardianship.

The court will always look to see the "best interests of the child" - and those factors are-

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life and the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
  5. The role that each parent has played and will play in the future in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
  9. Any history of family abuse or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination.

If the father successfully petitions for a paternity order, the court will presume the father having custody is in the best interests of the child. However, since the father is in prison, the court will look to see:

1. why he is in prison (ie the underlying crime-moral turpitude?)

2. expected date of release

3. whether there is an appropriate person to care for the child during incarceration

4. past relationship between child/parent

5. overall character of the father, including past criminal behavior.

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