Written by attorney Eric Alvin Ballinger

Child Custody of Relatives: Helping to Raise Your Family’s Children

In these times more and more people are called upon to help raise the children of their family members. There are any number of situations arise where a relative needs to get guardianship or custody of children. At this time there are parents on military deployment overseas, parents tied up in the criminal justice system or even parents who are just not capable or fit to raise their own children. While this is a time honored tradition of family taking care of its own, in the modern legal climate there is a need to formalize the arrangement through the courts. Even in situations where all of the principle players agree, there it is best to solidify the arrangement with a court order.

There are many situations where a relative will need to present a court order to perform some of the most routine actions that a guardian needs to take in order to raise children. Enrollment in school, authorizing medical treatment, signing up for extracurricular activities and even signing a permission slip all requires the signature of a parent. In the absence of the parent signature, a court order of guardianship or custody is required. Further, having a court order will allow a person acting in the roll of a parent to take advantage of certain benefits available for dependent such as health insurance through group plan of an employer.

Depending on the situation, there are a number of options available to a relative to obtain a court order. One such option is to obtain Letters of Temporary Guardianship through the Probate Court. These letters or order allows the guardian the legal authority to act in the roll of a parent. Temporary Guardianship requires the consent of the parents and can be terminated at any time by the parents. These are perfect in situations where the parents agree that the children need to live with a third party. What happens if the parents do not agree that a third party stepping in s the best for the child? There are two other options that much more drastic in nature but can.

First, a third party can seek temporary custody through the Juvenile Court on the basis that the child is deprived. If the Juvenile Court finds a child is deprived of its essential needs of health education and welfare, the Juvenile Court can award a third party temporary custody for up to two years. If the Juvenile Court judge finds deprivations exists and awards custody, the Judge establishes a checklist or plan of action to take in order to for the children to be reunited with the parents. If the plan is not completed by the parents, the court can extend custody, however there is a limit. Because the Juvenile Court is strongly associated with the Department of Family and Children Services, the plan may include services offered by children’s watchdog agency. Also, parents who are in court for deprivation may be eligible to a court appointed attorney if they cannot afford one, but there is no reciprocal for the relative seeking custody.

Second, a relative may seek permanent custody through the Superior Court. Certain relatives such as grandparents, aunts, uncles and even siblings can petition the court for custody of the minor children of their relations. To be granted custody, the relative must show first that there is harm will come to the child unless the parent child relationship is altered and then second the relative must show that it is in the best interest of the child to be placed in the custody of the relative. A Superior Court order remains in effect until the child reaches the age of eighteen. While custody may be returned to the parent, there is not a specific plan laid out by the Court. The parent has to file a new case to modify prior custodial order in the county of residence of the legal custodian.

Getting custody of a relative’s’ children is not an easy prospect. Due to the stigma of court proceedings, many times the parents are not willing to let the children go to a relative with a court order, no matter how temporary the situation. The matter can become emotional for all involved. The parent child relationship is a constitutional right and the burden of proof required to alter that relationship is very high, clear and convincing evidence. It is the highest standard in any civil case. These matters should not be entered into lightly.

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