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Cwhite85 · Jan 30, 2012, 05:19 PM

If the mother is in jail and she gave power of attorney to a friend does that friend have rights over the father to have the child? And don't they have to have the fathers consent to get power of attorney in the first place?

joypulv · Jan 30, 2012, 05:42 PM

There are many kinds of POA. Often it's a page with check boxes on it, so you would need to tell us exactly what it says.
A POA given by the mother doesn't supercede any rights the father has.

Cwhite85 · Jan 30, 2012, 05:51 PM

I'm pretty sure that it's a general one because the friend stated that his ex gave her POA over everything to include her kids. But we don't think that's it legal and her name was forged.

Fr_Chuck · Jan 30, 2012, 05:57 PM

A POA is given to allow medical treatment, allow the child to be enrolled in school.

A POA does not give any guardianship or any custody.

Kids can not be "given" to anyone, on a POA. They are not property and guardianship and custody has to go thought the courts.

Assuming mother is not going to be in jail more than a day or two, Father should be able to get the children.

joypulv · Jan 30, 2012, 06:02 PM

In a legal situation you can't be pretty sure or think maybe.
You need to see a copy. It must be notarized. You need to take it to her and ask her if it's her signature, and maybe even visit the notary, who would have asked for a picture ID.
But again, the POA doesn't change the father's rights set by Family Court.
There is a lot here that is second hand and uncertain.
The shortest route to the truth is the father going to Family Court with whatever problem he's having with the mother's friend.

Cwhite85 · Jan 30, 2012, 06:07 PM

She's been in jail since the 18th and he's just now finding out from her mother, he's been trying to get ahold of her so he could see his child but no response because she was obviously locked up. But this friend thinks this POA supercedes his rights as a father.

Cwhite85 · Jan 30, 2012, 06:17 PM

If the mother did appoint her friend POA, is she allowed to do that without the fathers consent? I guess we trying to see what we could do short term, that we could get her soon as possible.

ScottGem · Jan 30, 2012, 06:19 PM

Originally Posted by Cwhite85

But this friend thinks this POA supercedes his rights as a father.

She is wrong. As noted, children are not property. If the father goes to pick the children up, he will just have to prove he's the father and she will be forced to turn them over.

cdad · Jan 30, 2012, 07:13 PM

Does the father have court ordered custody at all? Is his name on the borth certificate? Is he paying child support for this child?

Cwhite85 · Jan 30, 2012, 09:31 PM

Neither one of them have court ordered custody but she is considered the custodial parent because the child resides with her and he pays her child support for the child. He is on the birth certificate and he does pay court ordered child support and is an active part of his daughters life.

AK lawyer · Jan 30, 2012, 09:49 PM

Originally Posted by Cwhite85

Neither one of them have court ordered custody but she is considered the custodial parent b/c the child resides with her ...

Considered by whom?

With no court order regarding custody, both parents share custodial rights.

The mother can delegate her maternal rights via a POA. However this delegation does not affect the father's custodial rights which, as I say, are equal to the mothers absent a court order saying otherwise.

Cwhite85 · Jan 30, 2012, 10:01 PM

Considered by the child support order it said she is the custodial parent and he is the non custodial because the child resides with her. So how can he go by getting his child from the mothers friend?

cdad · Jan 31, 2012, 03:53 AM

Originally Posted by Cwhite85

Considered by the child support order it said she is the custodial parent and he is the non custodial b/c the child resides with her. So how can he go by getting his child from the mothers friend?

He goes and picks up the child and if the person refuses then he calls the police. If she still refuses then she could be charged with kidnapping. How long is the mother suppose to be in jail ?

ScottGem · Jan 31, 2012, 04:13 AM

If the support order says she is the custodial parent then how can you say custody wasn't set by the court?? If a court orders one parent to pay support to the other then the court is awarding physical custody.

But we have answered your question. The POA does not supersede the father's rights. He can go pick up the children and he should do so immediately since the longer he waits the more it will appear that he supports the status quo.

By the way, what is your part in this, what is your relationship to the parties?

kcomissiong · Jan 31, 2012, 10:35 AM

I'm not sure what the answer is here, but I can shed some light on the support order in VA. Unless it is ordered as part of a divorce, support in VA is generally ordered by the department of child support enforcement and not family court. A custody order isn't necessary. I didn't have one when our support was ordered, I filed for support with the department as the custodial parent and after a review of our financials, it was granted. There was no custody order in place for several years after this.

In many cases, its easy to assume that the mother has legal custody beause the department also conducts genetic testing and knows that there is no legal father. By default, the mother is the custodial parent becaue she is the only legal parent. Unless the NCP contests the CP's claim, the support order is issued by VA guidelines to the parent who filed for it.

Cwhite85 · Jan 31, 2012, 01:47 PM

I am the sister to the father and the little girl is my niece. What I meant was they have a child support order done by the attorney general but they never been to family court to establish who has custody. They were never married they just aren't together do he pays child support to her for my niece which is his daughter. I have a similar situation and when I talked to a lawyer they said no one has custody until they go to family court and are granted custody of the child.

JudyKayTee · Jan 31, 2012, 01:52 PM

Where? What State? I'm going to guess Texas (because something similar has been posted before).

If the father wants custody he should go to Family Court and file for custody. He might be able to prove that the mother is unfit while he's in Court. I don't know the circumstances so it's difficult to say.

I DO know in NY - and from I can read of Texas law - the custody of children is NOT governed by a Power of Attorney.

Why hasn't the father gone to an Attorney and made his "move"?

kcomissiong · Jan 31, 2012, 01:58 PM

I don't know WHERE I saw Virginia here. I hadn't had any coffee yet. My apologies.

JudyKayTee · Jan 31, 2012, 02:00 PM

Originally Posted by kcomissiong

I don't know WHERE I saw Virginia here. I hadn't had any coffee yet. My apologies.

I have whole weeks like that!

Cwhite85 · Jan 31, 2012, 02:09 PM

Yeah I'm talking about Texas. He does have a consult with the lawyer Thursday but we were trying to get some incite on the situation first. But we did call the cops to the location but they didn't know what to do and we're just going by the POA because we didn't know ourselves whether she could do that or not.