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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 16840
Experience:  Licensed Texas General Practice Attorney
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My son died approximately 6 weeks ago. He had a daughter out

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My son died approximately 6 weeks ago. He had a daughter out of wedlock and this child has spent a significant portion of her last year IN MY HOME with either her father or myself as primary caregiver. The childs mother is extremely unstable and tells me today she is planning to take my grand daughter to mississippi and may not return. I am concerned deeply for the well being of my grand daughter. Mom is not only unstable, she is a drug addict and drinks to excess quite often. Can I stop her from making this move? She plans to leave in 4-5 days

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. First of all, I want you to know that while you do have a chance to get guardianship (i.e. custody) over your granddaughter, it is going to be an uphill battle. The presumption in favor of a biological parent is strong, and you would need to prove that she was unfit by clear and convincing evidence.

ScottyMacEsq :

The "best interests" of the child are going to be the overriding factors that a court is going to consider in such a petition. While you'll likely have standing to be considered guardian, that does not mean that you'll necessarily be the guardian.

ScottyMacEsq :

Here's the law:

ScottyMacEsq :

IC 29-3-5-4
Considerations for appointment of guardian
Sec. 4. The court shall appoint as guardian a qualified person or persons most suitable and willing to serve, having due regard to the following:
(1) Any request made by a person alleged to be an incapacitated person, including designations in a durable power of attorney under IC 30-5-3-4(a).
(2) Any request contained in a will or other written instrument.
(3) Any request made by a minor who is at least fourteen (14) years of age.
(4) Any request made by the spouse of the alleged incapacitated person.
(5) The relationship of the proposed guardian to the individual for whom guardianship is sought.
(6) Any person acting for the incapacitated person under a durable power of attorney.
(7) The best interest of the incapacitated person or minor and the property of the incapacitated person or minor.
As added by P.L.169-1988, SEC.1. Amended by P.L.264-1989, SEC.7; P.L.149-1991, SEC.3.


IC 29-3-5-5
Consideration for appointment of guardian; order of consideration; priorities
Sec. 5. (a) The following are entitled to consideration for appointment as a guardian under section 4 of this chapter in the order listed:
(1) A person designated in a durable power of attorney.
(2) The spouse of an incapacitated person.
(3) An adult child of an incapacitated person.
(4) A parent of an incapacitated person, or a person nominated by will of a deceased parent of an incapacitated person or by any writing signed by a parent of an incapacitated person and attested to by at least two (2) witnesses.
(5) Any person related to an incapacitated person by blood or marriage with whom the incapacitated person has resided for more than six (6) months before the filing of the petition.
(6) A person nominated by the incapacitated person who is caring for or paying for the care of the incapacitated person.
(b) With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section.
As added by P.L.169-1988, SEC.1. Amended by P.L.33-1989, SEC.70.

ScottyMacEsq :

The first law is what the court is going to consider, in its discretion, in awarding a guardianship. The second section is whom they will consider to be a guardian. By the way' "incapacitated person" means legal incapacity, which includes minority.

ScottyMacEsq :

...so when you see "incapacitated person" understand that to mean the child.

ScottyMacEsq :

In IC 29-3-5-5, you can see that the parent has standing (in (4)) in a higher priority than you (5). With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person or minor, may pass over a person having priority and appoint a person having a lower priority or no priority under this section. So essentially that means that the court CAN award you guardianship in the best interests of the child, but would have to find that the mother is unfit to do so.

ScottyMacEsq :

Given the fact that she has threatened to leave soon, I would suggest getting an attorney and filing a motion for guardianship, as well as a motion for emergency temporary orders or a temporary restraining order from leaving the state.

ScottyMacEsq :

That being said, you need to contact an attorney in your area that deals we. cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

ScottyMacEsq :

*deals with custody / guardianship cases... for some reason that got autocorrected...

ScottyMacEsq :

Even if the mother does leave the state (it would make the situation more difficult, but not impossible) the proper jurisdiction for the guardianship action would remain in Indiana for 6 months (until the child has resided in another state for 6 months) per the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

ScottyMacEsq :

But of course you would rather prevent her from leaving in the first place than taking a judgment from the Indiana courts to Mississippi, trying to enforce it there.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Unfortunately you verified what I had understood the I>C> to say also. Your service was good and I will rate it accordingly. Thank you

ScottyMacEsq :

You're welcome, and again, good luck to you!

Customer:

I.C. .... Typo, high stress right now !

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