Crazy situation but here it is in a nutshell:

I have a nephew who is currently living with the mother's friend.
The mother is incarcerated and serving Life without the possibility of parole.
The mothers friend took the child and is raising him. The child gets no heathcare but somehow slips under the radar when being enrolled in schools.
The child's father lives out of state and is schizophrenic.
My husband and I would like to take our nephew and raise him.
The woman who has him now says that we cannot have him and that if she lets us visit him it has to be at her home!
How can I find out what her parental rights are if any? I think this is kidnapping! Also, I was told that if he has been in her house for a certain amount of years that if we took him it would be like we were kidnapping even though we are family.

Since the mother is incarcerated, does the father have the right to walk right up to her door and take his son?

This poor kid needs to be with his FAMILY and needs medical care.

Contact CPS.

Get a lawyer.

If she has no guardianship or custody set up by the courts (and your lawyer could find this out) then you could pursue custody.

Also--how long has he been with his current foster mother? Since infancy? The child will not thank you for taking him away from the only parent he's ever known, if that is the case.

Quote:

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Since the mother is incarcerated, does the father have the right to walk right up to her door and take his son?

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In the absence of a court order to the contrary, yes, he does, provided he is legally the father (through DNA establishment of paternity, signing an affidavit of paternity, being married to the mother at the time of birth are the commonest ways to establish legal paternity.) If you and your husband are in fact serious about wanting to raise your nephew, then you should file a motion for adoption in Family Court. Also begin efforts to locate the father as he will have to give his consent in order for you to adopt. As for your nephew's current caretaker, she can respond to your motion any way she chooses and it will be up to the judge to decide, based on the child's best interests. You'll need to provide evidence as to why being with you is in your nephew's best interests. If you can demonstrate that he is not currently being provided with proper medical care, that'll weigh in your favor.

Tried to reply from my BlackBerry but I guess it didn't work... dang it!
Anyway, when the mother was sentenced the child went with the mother's mother (childs grandmother) who is a drug addict. This is where the friend stepped in and took the child. I admire her for that, however, when she contacted us that she had the child, it was simply to tell us that she had him, but would not give him to his family. It's all so bizarre. Her side of the story is that she has a signed piece of paper from the incarcerated mother stating that she can have custody of the child. Every time we try to visit the child she says he is grounded. If we bring Christmas/Birthday gifts she says we need to purchase gifts for her bio kids as well.
My main concern is him not receiving medical care and how in the heck schools can admit students with no medical records or social security numbers or what not. Wouldn't that be a red flag that the child may have been taken?
My husband and I are MORE than emotionally and financially willng and able to raise him. I just don't know what, if any legal rights she has.

P.S. The child has been with this woman for the past 3 and a half years.

If all she has is a "signed piece of paper from the incarcerated mother stating that she can have custody of the child" then legally, that's not worth the paper it's written on in a court of law, at least not until and if a judge grants her that custody and issues a formal order to that effect.

Thank you. I think what we will do is have the father do a swab for a paternity test, then try to convince this lady to let us do the same with the child.
Once our nephew is in the custody of his Father, his father can grant custody to us.
I think that's the best way to go about it.

P.S. Sorry this is off topic but, how do I add my picture to my profile in here?

Your BEST bet would be to get a LAWYER.

Some courts will not accept a paternity test not administered by the courts.

I agree

Get the father involved and get a court paternity test.

Is the kid current with his medical without insurance? That could be held against them as neglect if he is not getting proper dr appts that are consistent with his age such as being current with his immunizations and all.

He has not had ANY medical attention in the past 3 years. She has admitted to not allowing him to play sports for fear of injury.

On a positive note, I contacted an attorney during my lunchbreak and have an appointment set for this Thursday. I am very excited to meet with her to see what our options are.

Thanks to all for your super prompt responses! That was awesome. :) I'll keep you updated so that you may have more insight on situations like this.

Also, the attorney did seem concerned that the woman who has our nephew is a non-family member. I'm hoping this and the fact he has not received medical attention will work highly in our favor. :)

YES DO Let us know how it turns out

I know without court orders she has no legal rights to him as of yet.