First, it sounds like there has been a substantial change in circumstances since the order of 2008. The changes are 1) you are spending more time with the child than was granted; 2) your ex has a life threatening illness.
You should go back to court NOW, and modify the 2008 custody order. You need to ask for joint legal custody, and modify physical custody to reflect your current timeshare or joint physical. I am not sure why you were denied legal custody, but you need to explain what has changed, and why joint legal is now appropriate. You should prepare a calendar outlining all the time you have spent with the child for the last 5 years, and specifically the last 2 years.
If she passes away,the step-father could file for guardianship because he would have physical custody. If she passses away, you need to remove the child immediately. So long as the grandparents or stepfather do not physically have custody of the child, thely cannot file for guardianship.
Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.
You are in a very risky situation. If the mother dies before you file to modify custody, then you will be embroiled in a custody battle with the mother's husband and family, and you could lose. You must file for modification of custody based on the changed circumstances of your significantly increased time with the child. Your need a court order that you now have joint legal and joint physical custody. If you do not act immediately, then you stand to lose much, if not everything. If the stepfather gains sole custody, he could deny you any time with the child. So you must act now. I recommend you consult with an attorney for further details.
This is NOT legal advice, is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. Therefore my answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. I am an attorney licensed in Maryland and California.
Attorney Jett's answer is excellent and I certainly agree with it. Typically if an ex-spouse has sole legal and physical custody of a child, as long as your parental rights have not been terminated and another person has not adopted the child then the remaining natural parent receives placement and custody of the child.
However, I do not recommend that you wait. Attorney Jett has given very good and specific information that you should look into as soon as possible. You may want to consider speaking with Attorney Jett.
Whatever you do, I suggest that if you care about your son that you take action now.
Best of Luck to You in this very delicate situation.
Disclaimer: This is NOT legal advice. It is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. My answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. The GENERAL INFORMATION I provide here is NOT a substitute for legal advice provided by a competent and licensed legal practitioner in the jurisdiction where your case would be heard after the attorney is informed about all the facts and circumstances surrounding your case. You should always obtain professional legal advice and you should never act on any information found on the internet, no matter how reliable it may be or seem.
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