I'm trying to find info. on this but can't find specifics on this. Here's the situation. Marlene has a child with a man who had sole custody of their daughter. However, he and she always worked it out for her to have visitation.
Now he has died, and Marlene is trying to get her daughter back. She has been told that Florida law states that custody would automatically revert to the surviving parent unless there was any court decision showing otherwise. Marlene says that she gave up her custody willingly, there was no judgment against her.
However, the cop at the scene "gave custody" to the father's mother. Marlene is now intent on going down to the grandmother's house and taking the child.
Honestly, Marlene is not prepared to be responsible for this child, and never has been. I don't know, maybe she could do it now, I doubt it. An example is that though she lives within 40 miles of the child she hasn't managed to get her butt over there to see her since Thanksgiving.
If she goes over there and starts crap it's not gonna help things any. This child has suffered a great deal of loss over the last couple years.
Legally, does Marlene have a leg to stand on? She's not ... all there, you know? I'm trying to convince her to wait, but since hearing about the FL law from some legal aid lawyer that custody should revert to her, she is determined to go claim her rights.
Like right now. I have her on the phone trying to calm her down and stall her. Does anyone know if any of this is legal? Is a cop on the scene's decision about whose custody to release the child into in any way binding?
She is also concerned that child services may have granted some sort of custody to the grandmother, because she feels they are giving her the run around on it. She suffers from paranoia.
Can child services do that? In a state where custody should revert to the surviving parent?
Assuming none of this is binding, can she legally go get the child? I know she shouldn't do it in this way on her own, because his family has indicated quite clearly that they aren't going to let her go.
There was no living will. Anyone know what to do?
Just a thought. Has Marlene (or anyone) thought about the rights of her daughter? Because she will have them.
Re custody - most assume (parents, friends etc) that it's all about the parents rights. Well - children have them too. If they're old enough to use their own voice, it should be heard. If not, a guardian ad litem should be appointed. The (or 'a') child should have his or her best interests fully explored. Children are not possessions.
And no, I'm not a lwayer - but the above doesn't need to come from a lawyer. It's called common sense.
Pandora - truly, I hope your friend receives the help she requires. But mostly, I hope her daughter's needs are put first. Good luck.
You could ask half a dozen lawyers the same question and you could get back several different answers. It will depend on the local law, the interpretation of the law and how much information your friend has given for them to base their professional opinion.
As one corporate lawyer once told me, "there's not much law practiced in family law".
It's not that cut and dried.
From personal experience, and I'm talking about Australia, and this was ten years ago, so take it with a grain of salt, there's a thing called the 'status quo'. That is, what is the current situation?
In the situation I've been in, and of other friends who I've talked with, the magistrate will want the current situation, unless the child is in harms way, to remain constant, while the legalities are sorted out.
If your friend is determined to claim her rights, right now, it will end messily.
In one of my experiences I turned up to school to pick the kids up on the last day of the school term and have them for half the holidays, and my ex had already collected them from school, an hour before the bell rang.
I rung her to find out what was happening, and she said she wasn't handing them over. And that she was at home. She hung up a few times, but not being baiting me.
I had rights. I had a court order. Instead of banging on her door, I went to the police. Who (claimed they) were powerless to do anything. I knew that if I had been hot headed about it and had banged on her door that the police would have been called out for a domestic disturbance.
The situation wasn't sorted out that day. Or that week. But in the end, while the situation did turn back on course, that indiscretion was not overlooked.
It is like a game of chess. And unfortunately all too often the kids are the pawns. But still, the game can't be won in two moves.
In my opinion, having no knowledge whatsoever of American laws, that child should be with her mother.
The mother not being "all there" complicates matters.
That could be subjective.
My husband's family could argue the same - any psychiatrist could tell them different. I'm a mother without her kids too. There aren't many of us around - but don't assume its because we were bad parents.
There are many reasons why a mum could let someone else take her kids, and equally as many as to why she didn't stay in touch.
Best bet, talk to a lawyer. If she is that adamant about getting her child back she's going to eventually anyway.
If it were in Australia, the polices decision has no bearing.
If the child had spent a lot of time with the grandmother, more time than the mother had, then it was a fair decision by the police.
It's not going to get resolved quickly. She will have to make an application to court. In the meantime the child would be better off staying where they are.
I'm saying this regardless of whether the surviving parent is a male or female.
If she wishes to battle for custody she can do so. In the very least the grandmother should allow contact.
There is no quick and simple solution. She'll have to be patient.
I am sitting here with a few of my girlfriends and the census is...
Since the father past away she no longer has any rights and would have to go back to court , stand before a judge and request custody of her daughter. Depending on why she gave up custody, she may never re-gain custody of her child.
The officer placed the child where she legally needed to be due to the father having sole custody originally. The child went to the next of kin which would be the (legal guardian) if she went to the home trying to take the child they would arrest her for kidnapping.
There is a bunch of red tape she is going to have to get through to do it legally but if she acts appropriately and is determined to actually be the child's mom which could take sometime , it could be possible.
She needs to do it legally and not jump to conclusions at the present time.
***Response from three women , one is a paralegal in the field of law.****
The best advice I could offer is that you contact Linda Gary here on HP. She is to my understanding a lawyer.
After that I would strongly encourage your friend not to go to Grandma's House. Even if she has the right legally to claim custody of the child, doing so in this a way will make her appear the aggressor and the police will side with Grandma in the absence of a court order because it is where the child is currently living. By going there without proper legal documentation she could be facing harassment charges among other things that will not make getting the child any easier.
Handling this according to the law and through the court system is the only way to go.
Ohma, do you have Lynda's email address? Apparently that mess here earlier today got her banned and she has decided to leave hubpages. No contact me button remains on her profile.
Suspect girly girl is right, however, I wouldn't mind getting Lynda's informed advice as this looks to be something that will be continuing going forward.
Thanks for everybody's input. I'll fill ya in more later.
I know it is tempting to get 'legal advice' online (it is tempting for me to relay information that I have learned about child custody), however only a qualified attorney can ethically (and legally!) give legal advice applied towards this very serious, specific situation.
There are many legal aid clinics that operate hotlines and will 'triage' issues. This sounds like one that would have priority. Call the Florida Bar Association or visit their website and find these services.
As a college major in legal studies and an aspiring future attorney, please trust me on this - it is the best advice that you will get on this forum : contact a *Florida* attorney - do not listen to any advice given on the internet; it can be very damaging! People mean well, but we do not know the entire ramifications of the situation.
Best wishes in this matter!
There's nothing illegal or unethical about a person giving advice.
Whether the advice is useful or correct is another matter.
You are quite correct Darkside, it would only be illegal if they falsely claimed to be a legal professional whilst doing so. Even then, they would probably need to be incorrect and cause a problem to be liable or held to account. Of course, this is also true about financial advisors etc.
In fact, would any of us be allowed to write hubs? I write hubs about silver investment, just so long as I don't state that I am an accredited and registered financial or investment advisor, then the reader retains all responsibility for their actions!
I have a first class property degree, it would be ridiculous if I was unable to write property hubs without membership to a professional body, in fact the result would be an internet full of completely bias and non-impartial commentary by high earning professionals with a vested interest!
In America (and I'd suspect almost everywhere else) it is illegal to practice law without a license. Therefore, giving *legal* advice (and the key here is applying it to a *specific* situation, like this custody issue) can technically be considered illegal.
Source: Statutes across the U.S.A. and my legal ethics class.
However, illegally practicing law (again, one form is applying legal advice to a specific situation) is rarely prosecuted and typically is only noticed when someone either pretends to be an attorney and/or gives advice that causes damage to the party receiving the advice.
Those laws apply to law students and lawyers. And if I tried to pass myself off as being a lawyer. Or tried to charge anyone for my advice.
If I give advice based on my personal experience and tell them what avenues are available, good luck to anyone trying to sue me if they didn't follow through with it or if I forgot to tell them to fill out a form.
A person can represent themself. And it's a lot cheaper too. But I'd only suggest that if they've got excellent organisational skills and they're good at writing.
And I say that from personal experience too.
Totally understand where you are coming from. Of course anyone can give advice based upon personal experience or what avenues are available - that is providing information. Advice, more specifically legal advice, is a different ballgame. Yet, there is still a huge gray area when it comes to legal advice vs. legal information.
Either way, it would be near impossible for someone to try to recover damages from anyone offering poor legal advice applied specifically to their situation. However, that is *technically* practicing law - whether it is your next door neighbor or a third year law student giving the legal advice.
It is really difficult for me to not offer advice at times, especially when I definitely know the answer or can easily look it up. In the U.S., it varies from state to state, however you can usually provide resources such as links to statutes or give handouts as to what the law actually says. In some states, this has been ruled as practicing law, too (depending on the circumstances involved). IMO, it should never be ruled as the practice of law to distribute legal information, no matter the circumstance!
Either way, these laws, though rarely enforced, are put into place to protect the public. People often times give legal advice believing that they are being helpful. In situations like this, it is quite possible to give advice that could cause a very bad result, simply because all of the facts are not available.
Wow...that was way too long. I should ask my legal ethics prof if I can do an extra credit assignment and submit my post!
Not being a lawyer myself, I agree to girly though. It's too serious to not get a professional help.
Pan-Box, It's probably too late at night now for you to be talking with Marlene still (10:45 EDT). I hope that you were able to get her calmed down and that you convinced her to take steps one at a time and not rush into things, because that would definitely turn the decision-makers against her.
You mentioned that she already has talked with a legal aid attorney. It sounds like whatever friendly advice she receives now (from you) needs to be illuminated by the psychological perspective - that is, keep reminding her that this matter is too important to rush. If it is going to be resolved correctly, in the best way for the child, the only way to do it is for Marlene to take one step at a time. The child will relate to her better (you can say) if Marlene adopts a calm manner and doesn't argue with the grandmother in the child's presence. Keep reminding her that what she really wants most is for the child to have the best situation possible for her, the child.
Marlene does need to find the best attorney that she can, but the sad part is that she really shouldn't get the child, it appears. Does she have any community resources other than you - neighbors, a circle of friends, state resources - who could help her turn her life around and actually become a good parent, if she is awarded custody?
Can you remind her that she really has not had experience caring for her daughter for long periods without the possibility of letting her return to her father's house, and she really doesn't realize how much full-time work it is going to be? That should be one more reason why she needs to take this slowly.
Thank you everybody. This is a really great community, you guys are the best, and I love you all.
I did get her calmed down, and I did find Lynda by the way, Ohma, thank you, great suggestion. Shot her off an email a little bit ago. And I spent quite a bit of time searching the web. Seems she is in her rights, but I could just throttle the legal aid person who told her so.
I don't guess I made myself too clear in my OP, but yes indeed, my major concern is for the child. Late, going to bed. I'll explain better in the morning.
Thanks again, though, seriously. I felt so helpless.
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