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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2512
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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My question is if the father filed for temp custody becouse

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My question is if the father filed for temp custody becouse of something my daughter did can we as grandparents file for custody as well? the child and her mother have been living with us sence birth. And the father has said in the past including in court that he was allways happy with our grandaughter staying with us. Now he doesnt want her here even tho what she did was not done here
Thank you for allowing me to assist you.

Generally, custody can only be awarded to a nonparent if neither parent is able to care for the children. Is the father a risk or harm to the child(ren) in any way?
Customer: replied 6 years ago.
the only way he is a risk is the change in our grandaughter, becouse he doesn`t want her here. she is only 18months old. and we have never been a risk to her, nether has her mother
Then the mother would have a much greater chance at having custody than any non-parent.

When a judge is deciding a custody case between a parent and someone who is not a parent, the judge will make two decisions. First, the judge will decide whether there are
extraordinary circumstances. Examples of extraordinary circumstances are when a court has determined that there has been abuse or neglect the child has been harmed by continued domestic violence in the home; or there is substance abuse in the home of the parent. It might also mean that the non-parent (a person who is not a parent) has
been caring for the child for a very long time. If a grandparent has been caring for a child for two years, it is automatically considered to be an extraordinary circumstance. If the judge decides there is an extraordinary circumstance, he or she will then decide where it will be best for the child to live. This is called best interests. If there are no extraordinary circumstances, the judge will give the parents custody.

May I ask what it is that your daughter did that caused the father to file for custody? Also, is there a pre-existing custody order? It is easier to get a new order than to modify an existing order.
Customer: replied 6 years ago.
My daughter was in the presence of her x with our granddaughter and there was a order of protection that her x was NOT supposed to be near the child. My wife and i and the father had this order put in place because he had told us he was going to kill the baby and us if my daughter didn`t give him money. He was ordered to leave by the state police. My daughter has a learning disability so she has a tendency to believe a lot of things that are told to her. Thats why they have lived with us all there lives, my daughter and granddaughter. The father was good with this as he stated this in court when the order ofcustody was done.
Customer: replied 6 years ago.
What should we do next?
Your daughter needs to fight this in court. She needs to submit declarations to the Court explaining why it is still in her daughter's best interests to remain in her custody. She should focus on the factors that are considered in determining custody in New York:
  • Who has been the child’s primary caretaker
  • The quality of each parent’s home environment
  • How “fit” the judge thinks each parent is (taking into account any mental illness that the parent may suffer from)
  • Which parent the child is living with now and how long that arrangement has been in place
  • Each parent’s ability to provide emotional and intellectual support for your child
  • Which parent your child wants to live with, if s/he is old enough to make an informed decision
  • Whether your child would be separated from any siblings
  • Whether either parent has been abusive to the child.
These factors are stated in NY Dom Rel Law § 240.

If your daughter is representing herself, she needs to emphasize those factors that are beneficial to her - i.e. the fact that she has been the child's primary caregiver (and the child has lived with her all her life), the quality of her home environment, her fitness as a parent, her ability and to continue provide emotional support to her child. She can also refute the allegations against her and show how she did not harm her child, even if she did allow her ex to violate the protection order. If she did not violate it willingly or knowingly, then of course she should defend herself of that charge.
Customer: replied 6 years ago.
You have given me another answer that sounds like its going to help Thank You very much
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Customer: replied 6 years ago.
Can our daughter file to get custody back of our granddaughter or do we have to wait for the court date that was set for Nov 22nd by her x filing for temp custody allready?
So her ex has an emergency custody order? If the order is harming your grandchild in some way and she can refute the allegations against her, she can bring her own emergency action to undo the order. This is generally more effective if she was not given notice of the prior hearing when emergency custody was awarded to the father. She would have to have a good reason for canceling the emergency order - otherwise it is a waste of time to make the request. Usually when kids are school age, you can argue that the order is disrupting their schooling or disrupting their lives in some other fashion. Sometimes you can argue that the child is not developmentally ready to be removed from her primary caregiver. If, for example, the father has never had overnights and he is now having full custody to the exclusion of the mother, this could be emotionally harmful to such a young child.