Advice from someone who has been in your shoes
  Search CustodyIQ.com
  Search entire web
Supervised Visitation Directory
Return to list of questions Return to topic groups
Custodial mother recently died; child left living with maternal grandparents. Noncustodial father wants custody.


Your Question:
I am the NCP father of an 8 yr old daughter. I was unaware of her existence until she was 3 1/2 yrs. old. The mother always lived with her mother and stepfather (grandma and step grandpa for my daughter). We started with no custody/paternity agreement, and slowly introduced me into my daughter's life, I immediately began giving her money every month for child support.

A year later, my girlfriend moved in with me, and everything went to hell with the mom. She refused to let daughter spend the night, and no extended visits. The court process started, and a year afterwards we settled in mediation. Paternity was established, we have joing legal custody, with her as the CP, and pretty much the standard visitation schedule. She tried for back child support, and I compromised to pay 1/2 of her back medical expenses to birth, and the difference between guidelines and what I had been paying her for the last 2 years. This amounted to around $8,000 in arrears that I pay an additional $200 a month towards.

The mother passed away last week. I have been there for my daughter, and her grandmother to help them through this difficult time. As of now, my child is still with her grandmother. I would like to make a smooth transition for her to live with me. I have not yet spoken with grandma about the custody situation, she's having a hard enough time as it is. My daughter is in therapy, and the dr. and I agree that we should go with a phased transition. Daughter is not aware of this yet either. My attorney is filing on monday to terminate the child support deduction order and establish full legal and physical custody to me. I am not including grandma anywhere in the petition. I want this to be as easy as possible for my daughter, but I also do not want to risk a custody battle with grandma.

Questions:

1) If grandma wanted to get custody, she would have to have me served, correct?

2) The filing on monday is an emergency motion, I hope to have it heard by tues/wed. Assuming I win the motion (and I don't see why I wouldn't, do you?) This will supercede any kind of guardianship/will the mother might have left that she wanted daughter with grandma? (Mother was sick for a long time, and knew that she was terminal. She had time to get her affairs in order, and she wanted daughter to stay with her grandmother).

3) I am hoping the transition to live with me will happen over a 6 week period (start with every weekend, and add a day each week). My worry about this is that grandma can go to court and say that I agree with daughter living there, which, of course, I do not agree with. It's important to me that we work together for the sake of my daughter, and so far she has been much nicer than she was before, but the mother and grandmother have been sneaky in the past, and I have yet to bring up any of the difficult custody issues with her. How much risk am I going to be exposed to by doing the phased in approach? I live 1 hour from them, and my current stand is that I have custody, and that I want daughter to finish the year at her current school, so grandma is providing the after school care for her until the year is up in may.

Lastly, the state is Florida, from what I understand, there are pretty much no grandparent rights here.

Need a Supervised Visitation Provider?
Try the Supervised Visitation Directory - Over 1500 providers listed by state.

My Answer:
Hi,

Sorry for what your daughter must be facing right now.

Boy, you've got two hands to play here, and neither is a perfect balance.

I think you're right on the money that you don't want Grandma to file something first. I don't believe that the mother has any right to assign guardianship of the child if survived by a joint legal custodial parent. I believe that you are now de facto (i.e., actual) sole legal custodian of this child. I'm not an attorney, however, so be sure to consult an attorney on anything I write before taking any action.

That said, you didn't mention anything about Grandma being a negative influence on the child. If Grandma is positive for the child, it would keep your daughter connected to her mother's memory by having regular contact with Grandma, and it would likely help her emotionally to stay connected to the home in which she's spent a majority of time.

Ideally, you WOULD be able to have a gradual transition, like you want, and you WOULD be able to remain on good terms with Grandma so that she and the kid can spend quality time together regularly.

That said, if you start discussions with Grandma and tip your hand, she may run and file a motion to assume guardianship of the child, based upon the status quo arrangements (i.e., Grandma asserting that she has been in the role of primary caretaker for quite some time) and best interest of the child. This would lead to an evidentiary hearing, may involve an evaluation proess. The judge may order no disruption to the child's life until the process has run its course. And, yes, you or your attorney of record would have to be served before Grandma gets to be heard before a judge.

While you raise that Florida has limited grandparent rights (i.e., that's your statement I'm just repeating, I don't know if it's true), the legal issue behind Grandma's position may not rest on that. It may rest on "best interest of the child" to remain in her primary home (which happens to be Grandma) and with her primary caretaker (which happens to be Grandma). Again, consult your attorney to see if this is even a possibility. It may not be, but I wouldn't be surprised if that argument has some merit.

Unfortunately, you don't even know what's inside Grandma's head right now. Maybe she's tired and would welcome you to take the child, staying on good terms so child can visit Grandma and Grandpa frequently. But, her head is a black box right now.

So, where does that leave you?!

If you strike first with aggression and surprise, this could quickly turn adversarial. If you delay and try to start discussions with Grandma, she may file first and get an advantage.

Like I said, neither hand is perfect.

You state that you don't include Grandma at all in the petition. I think that this may be an area you can help strike a balance. If you include your own affadavit, stating that you hope to be able to remain on good terms with mom's family, that you hope to afford Grandma and Grandpa regular time with the child to whom they've established a wonderful grandparent bond (i.e., emphasize GRANDPARENT bond, not parental bond), and that you think your proposal best serves the child's interest; it may help reduce the blow of your filing.

An area I don't believe you're considering is what happens during the 6 weeks you're proposing to be a transitional period? If Grandma was thinking she would get custody, and if you steal that from her in a surprise attack during the midst of her mourning, what's her attitude towards you? Probably not too good. What will be the comments she tells your daughter during the next 6 weeks about moving to dad's house, about you? I don't know. If she has morals, she won't involve your daughter. If she doesn't have morals, Grandma isn't going to help with this transition and may actually make it harder on your daughter. You know her better than I do.

In the meantime, you can help daughter transition in a way that will help her focus on positive. Time for a room make-over? Go to Art.com with her so she can pick out two new posters for her room. Take her to Home Depot so she can pick out new paint for her walls. Go get a new comforter set. Get her really excited, in a way that matters to an 8 year old, that she has some control in this process too. Her world is getting wobbled, so try to find ways to keep her involved in the change taking place. That could help tremendously. Reassure her that she'll still see her grandparents regularly (I don't know what that translates to, but it may decrease over the years to a normal grandparent visit schedule as daughter identifies your home as her main one). And, if you can remain on speaking terms with the grandparents, talk with them about things that you can do together to help create lasting memories of her mom (e.g., on Mother's Day).

Good luck. Please let me know what happens next week.

Eric





This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.


© 2005 ~ 2012 CustodyIQ.com. All Rights Reserved.