Home > Research Legal Advice > Guardianship > Do I have any rights to get guardianship if i am a Grandparent?
Asked about 4 years ago - Middleburg, FL
FlagMy daughter and my son-in-law are getting a divorce. My grandson(2yo) and my granddaughter(9mon) is staying with my wife and I and have been for a while. My son-in -law is in the military and does not want custody of the kids. My daughter has neglected the children and doesn't take pay attention to them. My daughter and son-in-law has given us power of attorney over the kids. My daughter is going to start seeing a theripist for bi-polar and depression she has also been arrested for domestic violence. My wife and i think she is not mentally capable to take care of the children. Do my wife and have and rights as grandparents to try and get custody or guardianship of the grandchildren?
Addressing only the guardianship question, yes, any adult "interested person" may file a petition in probate court to have a person declared incapacitated. If your daughter is determined to be legally incapacitated, that is, unable to handle her affairs, a guardian will be appointed to take control of her affairs for as long as she remains incapacitated.
You may also petition for a guardian of the minor children to be appointed without the necessity of proving incapacity, as discussed above. Pursuant to Fla. Statute section 744.3021,this is a simpler procedure. If you are qualified to serve as guardian, the Probate Judge may appoint you to have full guardianship powers for the children.
You may either obtain a voluntary guardianship with approval from the parents or petition the court for guardianship. This might be advisable as under the current circumstances DCF could remove the children from your home and place them in another house. You will need to consider how you will protect the children from their mother because currently they are all living in your home.
David Goldman
Apple Law Firm PLLC
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Jacksonville, FL 32202
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You have at least 3 different options:
1. Formal Guardianship under Chapter 744 if both parents agree. You'll have to make reports to the court annually.
2. Temporary Custody by Extended Family under Chapter 751, again if both parents agree. If either one wants the kids back, you'll have to prove abuse, abandonment or neglect, or they go back.
3. Chapter 39 Dependency case involving DCF. If the father can't take them due to military service and the mother is a danger to them, you really should consider calling 1-800- 96 ABUSE and getting DCF involved. Neither of the other options gives you much enforcement power over the mother. If DCF is involved, the first preference is to place the kids with relatives AND they will monitor the mother's compliance with domestic violence and mental health services.
There is a big push to not take cases, so DCF may not even get involved even if you call, but you can still file a Chapter 39 action on your own if they don't. It's like guardianship "Any person with knowledge of the facts" can file.
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