My sister recently lost custody of her grand daughter to the child's biological father by unlawful means. She took immediate custody of the child more than 5 years ago after the untimely death of her 21 year old daughter (my neice), who left behind 2 small children. One the granddaugther and the other child a grandson who was only a few days old.

Both children have different fathers, however at the time my niece passed, both fathers declined taking full custody of the children, therefore my sister took on the role of caregiver, but nothing was setup legally, which was a big mistake.

Several years later, the father of her grand daughter decides that he wants to raise her and practically kidnapped the child from my sister a few weeks ago and has not given her back. My sister and some of her older children (siblings of the deceased), decided to try and take matters into their own hands and tried to take the child back.

It became such a terrible ordeal and police were called out and arrested my sister and her children, all of which are of adult age between 18 & 22 years old. When they told the police what the problem was, the police sided with the child's father and said that it would be up to a judge to decide who the child should truly remain with, which left my sister devastated as well as my little niece, who is now separated from her little brother and the only family that she has known since her mother passed away.

My sister is beside herself with grief and not quite sure what to do as she doesn't have the means of actually hiring an attorney, yet she can not show any form of proof that she has had custody of the child for at least the past 5 years. To make matters worse, the father of the child didn't even claim her as his own for at least the first couple years of her life. He just not too long became involved right after the death of the child's mother.

What advice could I give my sister in order to help her get the child back legally? She is still receiving social security payments for the child, which was left from the social security record of the deceased. The police seem to feel that she has no rights and has even authorized an order of restraint against her so that she cannot come near the child. The father has also accused my sister as being unfit to raise his daughter, yet he doesn't even have a job and is living in his mother's government assisted home. It's a total mess!

Can anyone help her? Any advice would be enormously appreciated and thank you so much in advance.:)

Hello Tiffany:

She needs an attorney.

excon

Your sister made two major mistakes. First, she should have made her guardianship legal right after her daughter's death. Second, she should have called the police after the father kidnapped the kid, not taking matters into her own hands.

She now needs to get an atty to get this straightened out. The attorney needs to file the paperwork to have her appointed guardian immediately. This is not going to be easy, but the initial abandonment and the actions of the father in just taking the child may help. Of course her trying to take the child back may hurt.

Thanks so much to everyone for the advice. We have already figured out that an attorney will be needed, but is there anything ELSE that she can do PRIOR to gathering up enough money to hire one?

I once read somewhere about filing a petition before the court in guardianship cases. Could someone maybe explain to me what that entails and if it is something that my sister could do while seeking legal counsel that she can afford? Is there any way that she could get help pro bono and if so, please explain how?

Yesterday was her grand daughters birthday and surprise, surprise... the father of the child didn't even recollect it nor did he apologize for not knowing. This is a very sad situation. He wouldn't even allow the child to see her own grandmother.

My little niece was balling in tears and wailing that she wants to go back home. In the meantime, the father refused to give her back of course, plus he refused to receive any of the gifts and even the birthday cake my sister attempted to leave with them.

I hope that someone can help us with getting a legal start on this case. I agree that she messed up big time by not getting legal guardianship and then attempting to take the situation into her own hands, but she took this guys word as his badge of honor. Unfortunately, his word could not be trusted, although my sister had been warned by other family members years ago that something like this could happen, but she really trusted him.

Thank you all once again for your advice. We surely appreciate it!

Ok, The first thing I would do is MARCH into the office of the local Chidren's services agency (either today or first thing Monday). Sit down with a caseworker and start with accusing the father of kidnapping. Talk about the attempts to celebrate the little girl's birthday and the father's reactions.
I'm assuming the father only took the little girl and not the younger sibling. I would also point out how the father was breaking up a stable home. Then go into the rest of the history on how the kids came to be with her. Be apologetic about not legalizing things.

The idea is to get the caseworker on her side so they can advise what to do. They may be able to recommend legal counsel who will take the case pro bono or for what she can afford. They can advise whether it makes sense for her to petition the courts on her own. She may even convince them enough so they may remove the child from the father, pending a judge's decision.

Unfortunately your sister can't get the kids back legally because legally they were never hers in the first place. She can file a motion in Family Court for custody but if the father contests it she's going to have a very difficult battle ahead of her, especially since she got herself arrested trying to forcibly take them back. The judge won't look kindly on the fact that she failed to go through proper legal channels to begin with. I'm sorry but it doesn't look good for your sister.

I will have to agree with cianci, years ago, she should have went to court and got at least temp custody, or full custody having the father sign his rights away.

By doing nothing the father had and keep full custody rights at the death of the mother. So they were always his children that she was merely watching. And sorry it is not kidnapping to get your own child back.

It will be very hard and very expensive court battle.