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Legalease
Legalease, Lawyer
Category: Family Law
Satisfied Customers: 16379
Experience:  13 years experience, divorce & custody issues, protective orders, child abuse issues
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Here is the question. Can a counterclaim be filed when

Customer Question

Here is the question. Can a counterclaim be filed when somebody other than the parents have temporary custody.
Submitted: 1 year ago.
Category: Family Law
Expert:  Legalease replied 1 year ago.

Hello there -

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Can you give me some more information on the matter? It is difficult to give you a legal answer with the few facts that you have given us. THANKS

Customer: replied 1 year ago.
Ok. Here is the situation. My grandchild's father committed suicide on June of 2015. My daughter was charged with murdering him in which they finally acquitted her October 2015. During that time the grandparents on his side of the family got the courts to give them temporary custody. Also they were not married. I tried to get custody but they beat me with filing the motion. Nobody including us and the daughter have not seen the child since June 2015 till now. The grandparents have us being followed and threatened to have us arrested if we even try to call and or even step on their property. We have did a counterclaim against them but their lawyer keeps having it dismissed. However finally on January 6, 2016 this will be the court date where we get to speak but however their lawyers still want to dismiss. What can be done. We are just trying to get temporary guardianship until my daughter gets her life together. We were even willing to sit down and talk with a medidator and they refused and also the grandparents lawyer refuses to talk with us. Just want to know what can be done next? Thanks for anything you can suggest.
Expert:  Legalease replied 1 year ago.

Hello there --

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It seems that the father's parents believe that your daughter is guilty of killing their son and are taking it out on you. You do have legal rights to visit with the grandchild if your own daughter's rights are not active and she has not pushed forward for custody or visitation after her acquittal. However, as far as custody goes, the court will order that the child be placed where it is in the best interests of that child and truly only the mother has the absolute right to petition for custody to be returned to her and the court will not do that unless she can show that she has gotten her life together (if she was acquitted in the death, then it should have no bearing on her custody bid). My suggestion to you is that you put forth a claim for grandparents rights and try to at least get some court ordered visitation of your grandchild and then when your daughter is ready with her life together again, she can petition to have custody returned to her. If the upcoming hearing is just custody you should amend it to include visitation in the alternative and you probably have a better chance of getting the court to order that you be permitted time with the child.

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MARY

Customer: replied 1 year ago.
I somewhat agree with but you see their lawyers refuse to talk with us. In five more months these grandparents will have permanent custody. There is nothing else we can do. Their lawyers will make sure that the courts will not even give us visitation rights. I just do not like it that we are being stalked and they threaten to have us arrest. So in other words they win and we lose. We are going to speak out in the court next month and see what the judge says. We will tell them they have us being stalked and threaten to arrest us. If it does not go our way we are moving out of state. They will have won. It is especially the grandmother who has done such cheating and telling lies. I hate to repeat myself but the father's mother will make sure we will never see the child and will have permanent custody. She has been threatening to do this since the child was born and that is to take the child away from the mother. We are the ones that helped to raise the child emotional and financial and she told the courts that she has done it all in which that is wrong. Oh well.
Expert:  Legalease replied 1 year ago.

Hello again --

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The final decision is not up to their lawyers -- you do not need to talk with them at all. Simply make sure that your motion includes custody AND/OR visitation rights and you should be able to survive a motion to dismiss from their lawyers on the visitation issue. Otherwise you will have to get your daughter to get herself together and step up to the plate to fight her former in laws.

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I truly wish I could give you a sure fire way to stop all of this from happening, but I cannot. The ONLY person who can do anything about this is the judge, so you should try not to let their attorneys intimidate you so much and work on finding a free or low cost attorney who can respond to all of this on your behalf. If not possible to get an attorney then my suggestion is that you file an additional written motion with the court to ask for visitation rights as an alternative to custody. If you settle for less than custody at this time then you may be able to expand it in the future -- particularly if your daughter is able to come back into the picture. If your daughter is stable and can provide them with a stable home (even if that home is with you and you all live there together), there is no reason why she should not have custody of her children after being acquitted in the case. You can get a form motion to request visitation at the clerk's office at the family court where the case is being heard and because there is still enough time to serve notice on the other side that this additional motion is filed and put this matter into the case with the custody request on Jan 6 (you have to serve the notice and copy of the motion on the other side and their lawyers at least 10 days prior to the court date). If you delay too much longer then you might miss the window of opportunity to make the formal request for visitation at the upcoming hearing - however, even if you do not file a written motion for visitation for the upcoming Jan 6 hearing, you can still make a verbal request for visitation rights with the children if the court gives you the chance to actually speak at that hearing before the court makes any rulings in these matters. While the proper procedure is to file a written motion and attend a hearing for a visitation request, it is still within the discretion of the judge hearing the case to listen to your verbal request for visitation at the Jan 6 hearing and grant you visitation if the judge is so inclined to do.

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Finally, I DO think that the manner in which these people have treated you is directly related to the death of their son and their belief that your daughter did it to him, and despite the outcome of the case against your daughter, you are probably NOT going to be able to change that animosity against you and your daughter. This is something that you should tell the judge at the Jan 6 hearing -- that you believe the paternal grandparents are poisoning the children's hearts and minds against their mother and her family and that the family court should establish visitation with their mother's side of the family in order to keep things fair and balanced because without the children getting to know you or their Mom for a long period of time, the relationship will be irrevocably fractured and the children will end up hating you and their Mom and deliberately cut you out of their lives later when they become old enough to make their own decisions.

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Please let me know if you have additional questions. If not, can you please press a positive rating above before leaving the website so I will be paid for my time assisting you today. Pressing the middle star or the fourth or fifth star to the right of it will insure that I am properly credited for answering your question today. Again, I am sorry that I could not give you an immediate and magic way to solve this in your favor -- I can only tell you the law and legal procedures as they exist with grandparents and grandparents rights -- and I would hope that you would understand that I can only give you the truth of the matter and keep that in mind when determining whether to press a rating star and which rating star to press. Pressing a positive rating will not cost you any additional money - it simply acts as a trigger to Just Answer to pay me for my time. Not pressing a rating at all permits Just Answer to retain your entire payment and not pay me anything at all for assisting you (the payment to me is a portion of the payment you make to the website, but I only receive it if you press the middle star or the fourth or fifth star to the right of that middle star above).

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And, again, if you have any follow up questions then please let me know. Even after you press a positive rating I will respond to follow up questions for several months and so if you have any questions after the Jan 6 hearing you can come back here and ask if you wish to do so.

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MARY