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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27689
Experience:  25 years experience as practicing attorney
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I have a return order hearing scheduled for 1/7 for my 9 yr

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I have a return order hearing scheduled for 1/7 for my 9 yr old grandson (my son passed away on 12/6/10 and his mother passed away in March 2004, my niece who has a notarized document from my son giving her custoday was signed on 8/8. I have filed a motion that i objected to her having him because I believe she is drug trafficking. I met with a detection who confirmed that the text messages between my niece and my son that she was the go between my son and another person. I have not been able to obtain an attorney but my motion is filed in court along with 20 exhibits of evidence including hosptial records that confirm my son had psychological disorder plus drug addict. In your opinion, do you believe this will be enough evidence to get my grandson returned to me. And what can i expect from this hearing?

-Could you explain your situation a little more?
Did you ever have legal custody of your grandson from a court?

Was the custody granted by your son to your niece a court order or just between the two of them?

Customer: replied 6 years ago.

No, i have never had legal custody of my grandson in court, but my son did give me a power of attorney. My niece filed an an emergency verified motion for child pick up with a Petionerer's Notice of Filing PRENEED Guardianship Agreement with a notarized document with my son's signature, my nieces, and her husband that says, I, then my sons name, the father of my grandson's name, do hereby appoint sole custodial guardianship of my (grandson's nam) to niece's husband and niece's name in the event of my illness, absence, or death. This document was not filed in court until December 16 and was notarized on 8/8. My son was a drug addict and I have hospital documents that support that. I also have text messages from my niece and my son, which a detective has confirmed, that they were drug trafficking.

Dear Customer - I can never predict the outcome of any court case but the court has the jurisdiction to determine custody of minor children. In the case where both parents are deceased the court is going to use the standard of "best interests of the child" as the determining factor. Of course they will consider the wishes of a deceased parent when making their decision but if you can show that it is in the best interests of your grandson to be with you as opposed to your niece then I would say the court would find in your favor.


You will need to present your evidence to the court at the hearing and if you have any witnesses who can corroborate your claims I would ask them to appear and testify. Based on your facts you have a good case but you need to get this evidence in front of the court in order to prevail. Your grandson is too young to testify but the court may order a psychological evaluation if you request it. Also you can request that the court appoint a guardian ad litem to represent the interests of the child and offer an independent evaluation and opinion as to which party is best capable of being the guardian of your grandson.


Dave Kennett

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Customer: replied 6 years ago.

I filed a MOTION TO OBJECT TO PETITIONER'S CASE and I stated that I was objecting because there is evidence that my niece has been drug trafficking that has been reviewed by a detective and also there is evidence that her husband has been arrested for child abuse, domestic violence, dui, driving under suspension and theft. My grandson was just given to them without even a hearing. I have hospital records that prove my son had psychological problems and also drug addiction, he died from methadone overdose, so shouldn't than prove he did not make good decisions for himself or my grandson.

As I said, you have an excellent case and if the court hears that evidence I can't imagine how you would not get custody. I just cannot ever say anything is 100% when it comes to court decisions. You may want to subpoena the detective who can verify the police records. Your best evidence is testimony from a person rather than copies of emails and police reports etc.



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Customer: replied 6 years ago.
how do i get a subpoena for the detective? hearing is 1/7

You can request the court to issue the subpoena.



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Customer: replied 6 years ago.

do i just call courthouse, family court, where i filed papers and ask them to issue subpeona? question 2. do i have to advise my niece's attorney of the subpoena? and question 3. do i have to subpeona my witnesses or can they just come to court?? I called the judge's office that is presiding over the hearing and asked her to piggy back my motion on this hearing. The judge's secretary advised this was only a 30 minute hearing and there was no guarantee that my motion would even be heard. Is there a way I can be sure my motion will be heard same day? Does the judge just say your 30 minutes is up?? You have been very helpful and I appreciate all your help!!

It is virtually impossible for me to know the exact procedure that is going to be followed in a specific court since every court operates a bit differently. Whether there will be testimony taken I can't tell you. If there is not demand for discovery from the other attorney for a witness list then you do not have to inform the other attorney who you plan to call as a witness. If there is a demand for discovery then you must send a written notice of a witness list to the opposing counsel.


All of this is legal procedure that consumes an entire year of law school and I can't prepare you for every eventuality that may occur. If you have your evidence at the ready when you appear in court then all you can do is try to present it the best you can. You really can't have too much evidence.


You will have to request any subpoena in writing from the clerk of court's office. They may have the necessary forms available so you will need to contact them and ask. Just remember that you cannot testify as to what someone else told you since that would be hearsay. You can present any evidence that you have personal knowledge of such as letters or emails sent to you or the other party.


You can cross examine the niece or any other witnesses the niece may call and confront them with any documents you may have and ask questions concerning those documents. Hopefully you will have a judge who will allow you some leeway from the rules of evidence but with an attorney on the other side it will be more difficult.


Obviously it would be better for you to be represented by counsel but I assume that it is not financially feasible.



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