I have been raising my niece's 4 children for 3 and a half years since she passed. Their father has been in and out of jail and prison since. He just was released and came all the way to Texas from Florida thinking I was just going to hand them over. The two youngest don't even know him and the two oldest didn't want to go with him. The cops said he had to leave and that he would have to file in family court for custody. I'm afraid he will win custody because I am just their great aunt. He hasn't tried contacting them the 3 years they've been gone. What are the chances he would get them?

Its hard to predict what a court will do. How old are the children? With a criminal record it is not likely the courts will just turn them over. But they may order a transition if they decide he should have custody. I don't think they will, but it is possible. I suggest you get an attorney.

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Originally Posted by Txkik24

The cops said he had to leave and that he would have to file in family court for custody.

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Hello T:

Unless you've been awarded custody or guardianship in a court of law, HE is the father and he HAS custody. If he TAKES them, there's NOTHING you can do about it.

excon

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Originally Posted by ScottGem

Its hard to predict what a court will do. How old are the children? With a criminal record it is not likely the courts will just turn them over. But they may order a transition if they decide he should have custody. I don't think they will, but it is possible. I suggest you get an attorney.

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They are 4,5,9 and 11. They haven't seen him since feb 2009. They were taken from him while their mom was in the hospital fighting cancer. He has a record of harassment, drugs and burglary.

[QUOTE=excon;3167865]Hello T:

Unless you've been awarded custody or guardianship in a court of law, HE is the father and he HAS custody. If he TAKES them, there's NOTHING you can do about it.

Actually in the process of getting custody/guardianship. And just because a man gives DNA doesn't make him a father. AND he did come to take them and the cops gave him a trespassing warrant and made him leave

In Texas, a grandparent / grand aunt etc/cannot seek custody of child/ren unless the grandparent /aunt, etc/ shows that the parent had voluntarily relinquished possession of the child.

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Originally Posted by excon

AND he did come to take them and the cops gave him a trespassing warrant and made him leave

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Hello again, T:

If you don't need guardianship or custody, why are you getting it??
I'm just telling you what the law is. I'm not at all surprised that cops don't know..

excon

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Originally Posted by Txkik24

Actually in the process of getting custody/guardianship.

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... or conservatorship??

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Originally Posted by GV70

In Texas, a grandparent / grand aunt etc/cannot seek custody of child/ren unless the grandparent /aunt, etc/ shows that the parent had voluntarily relinquished possession of the child.

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How is that so? My lawyer said that he can be charged with abandonment since he never once came for them, contacted them or provided for them. I would consider living on the streets and allowing CPS to take your kids voluntary relinquishment. Just saying.

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Originally Posted by Txkik24

How is that so? My lawyer said that he can be charged with abandonment since he never once came for them, contacted them or provided for them. I would consider living on the streets and allowing CPS to take your kids voluntary relinquishment. Just saying.

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I have just lost my crystal ball and I cannot predict what a judge will decide.
At least two State Supreme Courts decisions gave two different approaches. The first decision was that being in jail means voluntary relinquishment of rights, the second one was that being in jail is a valid reason not to visit a child and then it cannot be viewed as child abandonment.

Actually TFCode-CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS, deals with those situations.
§ 153.001. PUBLIC POLICY. (a) The public policy of this
State is to:
(1) assure that children will have frequent and
Continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child
§ 153.003. NO DISCRIMINATION BASED ON SEX OR MARITAL STATUS.

§ 153.008. CHILD'S PREFERENCE OF PERSON TO DESIGNATE RESIDENCE
A child 12 years of age or older may file with the court
In writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.
§ 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED
MANAGING CONSERVATOR.
153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

We are trying to give the best advice we can based on what you tell us. If you keep adding stuff, it makes it hard for us to help. You should have mentioned what your lawyer told you up front. He knows the situation better and may know better than us.

But according to you first thing he did getting out of jail was come collect his kids. That's not abandonment.

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Originally Posted by ScottGem

We are trying to give the best advice we can based on what you tell us. If you keep adding stuff, it makes it hard for us to help. You should have mentioned what your lawyer told you up front. He knows the situation better and may know better than us.

But according to you first thing he did getting out of jail was come collect his kids. That's not abandonment.

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I'm not adding stuff. I guess the information is harder to explain than writing over some information forum. I will just stick to the law but thanks for your help

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Originally Posted by GV70

I have just lost my crystal ball and I cannot predict what a judge will decide.
At least two State Supreme Courts decisions gave two different approaches. The first decision was that being in jail means voluntary relinquishment of rights, the second one was that being in jail is a valid reason not to visit a child and then it cannot be viewed as child abandonment.

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Thanks for your help. He had many apportinities to come get them before he went to prison. 14 months doesn't explain almost 4 years. When their mother was still alive he was not in jail or prison and never even tried contacting them and when they called to talk to their mom he hung up on them. There's more to the story that people don't know but I do not have to put my whole family business on the Internet just to explain myself. I will stick to the law and lawyers and if they give that POS his kids back that shows how corrupt our system is.

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Originally Posted by Txkik24

I'm not adding stuff.

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If you look at the thread you have mentioned things not mentioned in the first post like having an attorney. I'm not saying you should just ask about the law, I'm saying the if we don't know certain facts we can't give you the best answers.

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Originally Posted by Txkik24

He had many apportinities to come get them before he went to prison. 14 months doesn't explain almost 4 years.

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Hello again, Tx:

NOBODY here thinks he SHOULD get the kids. You MISSED that. Having done so, you do yourself a disservice.

excon