Author Topic: Help with child custody case  (Read 2398 times)

mozar

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Help with child custody case
« on: July 03, 2018, 02:57:41 PM »
Hello,
I would like help understanding legal terms and options for helping my sister. I went to a free family law clinic and it was somewhat helpful but he just walked me through how to file for joint custody. I'm not sure that's the best option as it is "at will" and revocable which seems pointless.

My goal: I want my sister to stay with me over the summer and on weekends.

Situation: my sister complained to CPS that her mother is physically abusing her. Her mother and my dad are separated but her mother lives with my dad because she is homeless.

Scenarios:
1. I talk to my dad and I say I can watch my sister over the summer and weekends. He says great, let's do it!
2. I tell my dad I can watch my sister summer/ weekends and he says he'll think about it and I don't hear from him again until it's too late for me to enroll my sister in summer camp (most likely scenario)

I'm more concerned about summer than weekends. My sister goes to stay with her mother and extended family who are known abusers.

What can I do in the second scenario? I could get CPS to do an assessment? It would be nice if I could talk to the one my sister spoke to. But it seems that CPS mostly connects families with services. I would have to allege "severe physical abuse" for something more to happen.

I could look into having the mother declared unfit? My dad already has primary care taking responsibilities and is allowing my sister to spend the summer with her mother and her relatives with full knowledge of what has happened.

I could file a complaint for joint custody? My dad might consent, her mother probably wouldn't. If I won means I have the right to make parental decisions but my dad and I would have to come to an agreement.  I'm confused about this part because I've read that an agreement is not enforceable but a court order is. So how would I get a court order? But then it is revocable anyway?

I'm open to filing for full custody but I have read that it is very difficult for a non-parent to get. And I don't want to take her away from her elementary school.

I'm trying to get prepared for when I talk to my dad in a few weeks. He only calls me when he needs something or it's his birthday and his birthday is coming up. I also want to keep the lines of communication open, I only know what I do because my dad trusts me enough to tell me.

I appreciate any help you can provide. I don't have anyone to talk to and people here have helped me think through things.

narrative

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Re: Help with child custody case
« Reply #1 on: July 03, 2018, 03:39:23 PM »
I don't really have any answers, but I didn't want to leave the thread without commenting. I know these things are really tough.

The first thing that comes to mind when I read your post is that if there is abuse taking place it needs to be reported to the correct authority. I found this state-by-state list of who to contact.

If you know abuse is taking place you need to report it ASAP.

formerlydivorcedmom

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Re: Help with child custody case
« Reply #2 on: July 03, 2018, 03:50:04 PM »
Kudos to you for wanting to protect your sister. Family court laws and norms are different in every state.  I live in Texas, and I'm not a lawyer or social worker, so please don't take any of this as gospel.

You can file a complaint with CPS based on what your sister told you.  They should investigate, and they will hopefully be able to tell you the results of that investigation.

Keep good documentation - write down everything that your sister tells you about how she is treated when with her mom and with your dad.  Make a note - if you can - of when she sees her mom and when she is staying at places that aren't with your dad.  Write down every bruise you see on her, any change of attitude that you see in her/any signs of depression, etc.  Always note the date and time and how you came by the information ("I saw it"/"my sister said..."/"my dad said....")  If, when school starts, her grades start slipping or she's not doing her homework, etc...write it all down.  Even if you don't use this information for some time, you are documenting a potential pattern.

Is she your dad's biological child?  Does he have a legal custody agreement with her mom, or are they just making it up as they go along?  Are they legally separated or just informally?

Custody orders are never "permanent" as in set-in-stone-until-the-kid-turns-18.  They are "permanent" until someone files for a modification.  If no one files for a modification, the order stays in place.  If someone does file, then the court rules on the merits of that request/orders mediation/etc.  [My husband has been divorced for 9 years; he's recently filed for a modification to change the terms of the custody agreement with his xW.]

Family court focuses on "the best interests of the child".  Usually, the status quo is kept unless evidence shows that the status quo is not in the best interests of the child, as defined by your state.  (Hence, documentation!)  This means that it isn't really necessary to prove a parent is "unfit" - it's necessary to prove that the parent's ACTIONS are harming the child's physical or emotional well-being.  CPS uses "unfit" to determine whether or not to revoke parental rights completely.

"Joint custody" usually refers to decision-making power.  It means that both parties have equal rights to make medical decisions, be involved at school, etc.  Usually one party is designated as "primary", so they have the right to set where the child goes to school.

"'Posession" refers to who the child lives with when.  This is the visitation schedule.  It is possible to not have joint custody and still see the child a great deal, depending on the terms of the agreement/judge's order.

If you believe that your sister is being abused and your dad is not taking action to protect her, is he the right person to be in charge of her?  Does he not believe her, or just believe that she needs to see her mother, or just want a break from caring for a kid for the summer/weekends?  Would she be better off in general living with you?

In your shoes, I would contact CPS immediately and tell them everything that you know.  Make sure they also know that your dad has heard these allegations and done nothing.  If CPS finds the allegations credible, they will also investigate your dad.  They can keep your identity a secret...but your dad may still figure out that you were the one to call. 

When school starts again, you could also call the school counselor and her teacher and let them know what is going on and ask them to watch her for signs of abuse or distress.  Because of privacy laws, they probably can't tell you what they think, but they are mandatory reporters and would have to tell CPS if they see signs of abuse.

At the same time, I would ask your dad if your sister can spend more time with you.  If he does agree, this would start establishing a status quo.  If he doesn't agree, keep asking if you can have her for certain weekend.  Also make sure that your sister has a way to contact you and feels safe in confiding in you.

Here's the pure speculation -
If your dad is the bio father, I can't really see any way that you could get joint custody.  If your dad and the mother aren't legally separated (it's informal), then I can't see any way that you could get joint custody.   If it comes down to it, you will likely need to petition for full custody...and that means you will need lots of evidence to prove that both her mother and your dad are not acting in her best interests and that you can be a better parental figure. 

Best-case scenario - both her mom and your dad agree that you would be better able to raise her and agree to sign papers making you her legal guardian and giving them some form of visitation.  [This is likely what is going to happen in my husband's custody modification - now that he's shown stepdaughter's mom the reasons why he wants to make the change, I think she will agree to what he is asking.]
 
If either of them disagrees and wants to fight that change, this could be a very long and expensive battle.  It could irrevocably damage your relationship with your father (because you would be telling the court that he isn't fit to make these decisions), and you are not guaranteed to win - it's an uphill battle when you aren't one of the parents. 

Your sister is lucky that she has you trying to protect her.  I wish you the best of luck in finding the right path to do so - whether it's being a safe space to listen and show her a different kind of life..or whether it's the extreme of filing for custody.

CNM

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Re: Help with child custody case
« Reply #3 on: July 03, 2018, 03:54:27 PM »
Wow, what a terrible situation.  I don't really know for sure (I'm a lawyer but I don't practice in this area at all) but I would consider:
1. Calling the police/child protective services.
2. What is the relationship like with dad?  Does he know about the abuse?  Has he done anything about it?
3. Try and get your sister to live with you asap.  Get her out of the situation if you can, deal with the legalities later.
4. Talk to an attorney about actually getting legal custody.  From the little I know, if you are seeking to terminate someone's parental rights, yes, it is hard and it involves child protective services, rehabilitation programs, etc..  If you can get mom & dad to agree to something, that will be much faster and easier, even if it could be revocable.   

formerlydivorcedmom

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Re: Help with child custody case
« Reply #4 on: July 03, 2018, 04:00:48 PM »
I googled "nonparent custody Texas" (since I'm more familiar than I wanted to be with our state family laws) and you may be talking about what our state calls "Authorization for Nonparent Care of a child".  This is revocable by the parents at any time (without going back to court), but allows someone else to care for the child for a period of time up to 1 year (and it can be renewed).

Anything decided with a court order would require a court order to change (could not be changed at will of the parents).

Mon€yp€nny

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Re: Help with child custody case
« Reply #5 on: July 03, 2018, 04:10:47 PM »
I know about a case where an older sister became the legal guardian from.a younger sister but I think the bio mother admitted she couldn't handle her anymore and agreed.

Your sister is lucky to have you. Do you know what all people that were able to process a traumatic childhood and have a successful live have in common? They had an angel. An Angel is a person that shows you someone does care about you, that life doesn't have to be misserable,  that there is more. My angels were my grandmother, a school janitor and when I was little my older sister. You are your sisters angel.

Maybe your first step could be talking to your dad a couple of times. He might not agree with you immediately, sounds like he is in denial a bit. Might be hard for him to accept the truth and admit he wasn't right. Hopefully he will see that you are offering a good solution to a problem.
Can you visit your sister often? Maybe pick her up to do something together?
Can you record phone conversations with her for CPS?

It might take a while before you can get her the help she needs, you might need an in between plan. I think.you need your dad on your side for that.
« Last Edit: July 03, 2018, 04:13:30 PM by Mon€yp€nny »

formerlydivorcedmom

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Re: Help with child custody case
« Reply #6 on: July 03, 2018, 04:14:48 PM »
Can you record phone conversations with her for CPS?

Check the laws in your state first.  Although in my state it is legal for one party to record a conversation without the other party's knowledge, our lawyer instructed us to never record a conversation with the child.  Family court in our area will not admit those recordings as evidence and will scold the person who made the recordings.

We were encouraged, however, to continue recording conversations between the adults.

Mon€yp€nny

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Re: Help with child custody case
« Reply #7 on: July 03, 2018, 04:18:27 PM »
Sorry, wrong advice!

Could she herself consent to it at a certain age or can the girl never consent as long as she is not an adult?

CNM

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Re: Help with child custody case
« Reply #8 on: July 03, 2018, 04:28:46 PM »
I also gave wrong advice!  About the calling police/CPS, it looks like that was already done by your sister.  Did anything come of that?  If there have been additional incidents of abuse since that 1st call, I'd get them involved again.

formerlydivorcedmom

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Re: Help with child custody case
« Reply #9 on: July 03, 2018, 04:30:34 PM »
Sorry, wrong advice!

Could she herself consent to it at a certain age or can the girl never consent as long as she is not an adult?

I didn't ask our lawyer that.  My SD is 11.

A friend of mine's 9-year-old recorded a conversation he had with his dad  - his idea.  Her lawyer told her to delete it immediately and tell the kid to stop that or he'd get the mom in trouble.  I was shocked - I thought it would be admissible!

But, laws about recordings are different in every state.

mozar

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Re: Help with child custody case
« Reply #10 on: July 03, 2018, 04:32:10 PM »
OK, it will take me some time to think through all these comments.

My dad is the bio dad. He is aware of the abuse. My sister told him. He told me. He tells the family members to stop, they do for awhile and then they start again.

I'm wary of trying to get immediate custody because that would probably include calling the cops to track her down (I don't know where she is) in the middle of her summer and traumatizing her further. Like an Elian Gonzalez situation.

Quote
Could she herself consent to it at a certain age or can the girl never consent as long as she is not an adult?

She's 7, so she's not consenting to anything anytime soon.

So some people think I should talk to CPS myself? Another thing I could do is that her elementary school has a volunteer day Thursday mornings. I might be able to do that. Otherwise her mother doesn't allow her to see me.

Quote
Did anything come of that?  If there have been additional incidents of abuse since that 1st call, I'd get them involved again.
I saw her a few weeks ago for the first time in a year and a half because of my sister telling CPS that her mother was blocking her from seeing me. The thing is that I won't know of additional incidents because I won't talk to my dad until after it's happened, maybe long after. He is hard to track down as well.


formerlydivorcedmom

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Re: Help with child custody case
« Reply #11 on: July 03, 2018, 05:15:16 PM »
Oh, this is getting more complicated :(  You only know about the abuse third hand (she told your dad who told you) and you aren't allowed regular access with her right now to find out what is going on.

Do you know who called CPS initially?  Your sister, your dad, another adult?  That would help you track down the name of the caseworker so that you could talk to them.  If you can't get that information, I would call the local CPS branch and be politely annoying until you get to the caseworker for your sister.  If you can't get to your sister's caseworker, then I would file another report saying that you have been told that these people are abusive and your sister's primary caregiver (your dad) just sent her back to live with them for the summer. [People call CPS about all kinds of stupid stuff...the worst they can do is file your comment away and ignore it.  Best case, they call your dad and figure out what is going on.]  The point is that they need to know she's there for the summer and that you are a willing caregiver if that becomes necessary.

You really need to meet with a lawyer.  Ours did an hour-long consultation for under $100; we told her the story and she gave us advice on what evidence we needed and what strategy she would use to help us.  We then had the option of whether to pay a retainer and hire her.  Even if you aren't prepared right now to hire a lawyer, it would be good to know exactly what you need to do/what is possible for a lawyer to do/what is possible for you to do on your own.  There may be lawyers in your area who specialize in non-parental custody (you can google grandparent custody too).  Do as much research online as you can so that you can ask good questions.

I love the idea of volunteering at her school.  You might also be able to eat lunch with her periodically - you can call her school and find out when her lunch time is.

I think you also need to have a very candid face-to-face talk with your dad about your sister's safety.  He may be in denial.  At the very least, that conversation will help you to figure out how committed he is to protecting her and how receptive he is to your help.
 
I'm wary of trying to get immediate custody because that would probably include calling the cops to track her down (I don't know where she is) in the middle of her summer and traumatizing her further. Like an Elian Gonzalez situation.

There would be no tracking down of your sister unless you can get a judge's order to grant you emergency custody, and it sounds like you don't have enough evidence to get an emergency order.  It really will become a balancing act for you - where do you draw the line between supporting her in her current situation and attempting to snatch her out of that environment?  My husband has struggled for 5 years over whether to change the custody agreement for his daughter; he waited until she finally volunteered certain information to him, and then he acted immediately.  He now says he wishes he'd acted years ago...but that's with hindsight.  We hoped all these years that it wasn't THAT bad at mom's house, and that mom was getting the support she needed to be a better parent.  He bent over backwards to be fair to his ex and give her every opportunity, because he believed it was best for her to have a great relationship with each parent... and that may be what your dad is doing too.

Nothing about this will be easy.  Bless you for even trying.

mozar

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Re: Help with child custody case
« Reply #12 on: July 03, 2018, 06:43:26 PM »
Quote
Do you know who called CPS initially?

I know it was my sister's doing. I don't know if she told her therapist (she sees a therapist at school) and the therapist was a mandatory reporter to cps. I think that's most likely. I don't know how my sister would get the cps number.

Mon€yp€nny

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Re: Help with child custody case
« Reply #13 on: July 03, 2018, 11:43:29 PM »
I'm so sorry and sad about this. I'm so glad you choose to try to be part of the solution, not the problem.

Seems like your best options to help her at this point is first to talk to your dad and second contact CPS.
I'm afraid that when your father has already agreed the mother can have visitation over the whole summer, he needs a lot of evidence to get her out of there too. Does your dad know his daughter reported abuse?
Wouldn't CPS inform him when it was investigated? I think they have to inform him, he has primary. He either knows, or it is still in process or your sister thinks CPS is involved but they are not.
You really need to talk to your dad.

Imma

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Re: Help with child custody case
« Reply #14 on: July 04, 2018, 02:45:56 AM »
I'm so sorry for what your sister is going through :( But it's good she has a person like you in her life. I'm not American, so I can't tell you anything useful about the legal side of things, but I think it's important to establish some kind of informal contact with your sister and to tell her in terms that a 7-year old can understand, that you're her big brother/sister, you're always going to be on her side and that you're always going to believe her. Don't push for information, but make sure she knows you can be trusted.

Volunteering at school sounds like a great option. If your father gives you permission to volunteer there, could her mother block you? I would think she couldn't do that if your father has custody. That way you can keep in touch with your sister in a very informal way, and also get to know her teachers. If her teachers see you're a trustworthy person, they might contact you if they're worried. To have a strong custody case, as an older (half?)-sibling against a child's bio parents, you need a very strong case with lots of proof and I think courts generally prefer to place a child with a relative they know well.

What kind of person is your father like? It seems he knows about the abuse, he's against it (as he's spoken out about it) but for some reason doesn't actively intervene. Why is that? Could you try to get your father on your side somehow?

former player

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Re: Help with child custody case
« Reply #15 on: July 04, 2018, 03:31:33 AM »
Your 7 year old sister is living in the same house as her abusive mother: that's the first problem.  Then, your sister will be going to stay over the summer with her mother and mother's family who are also abusive: that's the second problem.

 
There are only two ways to solve these problems.  The first is that your father steps up to the plate, gets the mother out of the same house as his daughter and makes alternative care arrangements for schooldays, weekdays and holidays.  He knows about the abuse, so my question is: what are his barriers to doing something about it?  It may be that he is unable or unwilling to provide proper alternative care arrangements: if this is so can you offer options to him that will make it easy for him to take the necessary action to protect his daughter? 

It may also be that that your father is unable or unwilling to stand up to your sister's mother - it is quite possible that he is being abused as well.   In that case, the other way to solve the problems is to get social services involved, on which there is good advice by others.

mozar

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Re: Help with child custody case
« Reply #16 on: July 04, 2018, 08:58:19 AM »
That's a really good way to put it, that he's being abused as well.
As to why he doesn't take stronger steps to stop it. My dad was abused as a child, so maybe it's learned helplessness? I was also abused as a child, I have to figure out out how to stop this cycle.
I think I only need the school's permission to volunteer, I don't think her mother can do anything.  She can't take my sister out of school every week. I had plans to read to her classroom and her mother forced her to take a sick day. Fortunately she got in big trouble with the school.
Volunteering sounds like a good option if I can't get her weekends this fall.
I should volunteer anyway so I can meet her teachers/ therapist.
« Last Edit: July 04, 2018, 11:19:12 AM by mozar »