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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Our 39 year old daughter passed away last July (2012) leaving

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Our 39 year old daughter passed away last July (2012) leaving 2 minor children. They have different fathers and the father of the youngest one (age 5) has suddenly expressed an interest in wanting to be a father. He hasn't sen this child since he was 10 months old. We are the granparents and very much want to have sole custody of the minor children. We went to court and our deceased daughter was actually put on trial and we were sternly reprimanded for not trying to reunite our grandson with his father! I might add that we all live in the same town in Virginia. We lost custody and are wondering what our legal options are for continuing to fight this and hopefully regain custody.
Thank you for your question. Please permit me to assist you this afternoon.

My condolences to your family on this loss. By 'losing custody', was it based on the fact that you denied the other parent the ability to see the child or otherwise communicate with the child when you had guardianship? I am just trying to understand why the judge ruled against you so I can best provide you with my insight. Thank you!
Customer: replied 4 years ago.

Within a couple of weeks after our daughter died we petitioned for full custody. That was the only contact we had with the father. At no time did he ask us to see or to speak to our grandson until we went to court. Our daughter and he had a bad relationship and there were a couple of times she denied him the opportunity to see the child. But, we must add that the father wanted to 'meet in the walmart parking lot' and not for an exchange but rather just to see the child. They did not communicate effectively or often with each other. It was the judge's opinion that since the father was not unfit he should have custody of his biological child. We had a court appointed counselor that presided over some visitations and it was her opinion that the child should remain with us. We are confused and devastated as our grandson has been ordered to live with his father effective June3. He just met this person about 6 weeks ago and now will be leaving the only family he has ever known to live with strangers. I might add that the father is disabled (some kind of heart condition) and is on his 4th wife, yet our daughter was drug through the mud for having different fathers for her children. He also lives in a cramped 3 bedroom apartment with his wife, and her disabled parents. We have been married fpr 43 years and have a beautiful home with a very large lot. We are both exceptionally healthy.

Thank you for your follow-up, Brenda. I really appreciate the back-story here.

Historically courts have real choice but to favor parents over grandparents or other blood-relatives simply due to the paternity or the maternity connection. The courts, as a matter of public policy, consider it to be in the best interest of the child to be with the parent and be raised by them. The courts do not grant those rights if the parent is unfit or if the parent abandoned the child, or if the parent's rights were severed by court order. But if the parent is 'fit' but had no chance in the past to be with the children, the courts do tend to favor them and to grant them custodial rights. I suspect that is what occurred here--the judge saw no good reason to deny the real parent custody and that is why the order came the way it did. The fact your deceased daughter denied him access is regrettably pertinent because the surviving parent can claim or show that he attempted to be involved in the past but was otherwise denied or rebuffed by the existing parent.

Here, you have two potential options. First, you may need to look further and see if you can find any evidence of unfitness of the other parent, issues such as past history of abuse, neglect, domestic violence, drug use, alcohol abuse, mental illness, criminality, or moral turpitude. The fact he is on the 4th wife is not a strong factor if he is able to provide adequate care for the child. That may then grant you the ability to seek a review and potentially reverse the order. The other option is that as grandparents you can file in court for formal visitation of your own on grounds that you have an exceedingly strong bond with the child, and that depriving the child of you would ultimately not be in the child's best interest. With the order as it stands the current parent may deny you the right to see the child and based on state and federal law, would be entirely correct in doing so.

Good luck.

Customer: replied 4 years ago.

We are not sure we understand your last sentence, why would he be entirely correct in doing so ? And would past and current cases against him for financial reasons have anything to do with his ability to be a fit parent ? We did do some research and found that he, his wife, and her parents (all the people our grandson will be forced to live with) have past and/or current cases (?) brought against them, from many different creditors.


Thank you for your follow-up. By 'entirely correct' I mean that he would be entirely within the law in doing so. Not that it is 'correct' or 'right' of him to do so, merely that the law would permit him such an action. It was not a judgment on my part, merely an explanation of state law.

His bad credit is not a viable claim for fitness. It only becomes a potential issue if due to bad credit there are constant relocations that end up unreasonably affecting the child and the child's development. So no, that is not a factor for fitness.

Good luck.

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