[kittytat2]

Hi there.

My husband and I want to apply for legal guardianship/custody of his niece and nephew. We are married, own our home (currently in the process of selling and buying a bigger home) and we have 2 boys of our own.

The situation is that these kids are wonderful but have been through so much with their parents. Their father abandoned them and has in the past done drugs. Their mother is on welfare and recently moved in with her mother and has no plans on looking for work. She doesn't hurt them, she's not on drugs or alcohol however she is not a healthy role model to these kids. They are up until 10:30-11pm on a school night, they have no structure not to mention their mother moves location every 3-6 months. Recently the father has come back into the picture and because the mother would rather be with him then look for a job and get up on her feet, it looks like she might end up being with this man again. We are very worried about this.The stability is not there and this where my husband and I are worried. We can already see aggression coming out in the 10yr old boy and the 8 yrs old girl is drastically depressed and overweight. My husband and I love these kids like our own, and we want them to have a stable, loving home. How do we go about doing this? Where do we start? Do we have a chance?

Any advice would be greatly appreciated.

Thank you.

[kittytat2]

ETA: We are in Ontario Canada. Thanks!

[JudyKayTee]

ETA: We are in Ontario Canada. Thanks!

I was poised to jump into this and then I read the Canada part. I honestly don't know but there's a good chance someone will come along who does.

In the US - and I can't believe it's any different in Canada - the parent has to be a danger to the child (physically, emotionally) in order to lose custody. Not everyone parents in the same manner, not everyone is even an acceptable parent, but the question is whether the child is legally neglected.

Do you have any sort of proof that the behavior is dangerous to the children or adversely affects their health (emotional or physical)?

This is a hard situation and proof that is acceptable and rises to the Court's standard is hard to get.

Again - I just bumped this a little bit and hopefully someone will come along soon.

Good luck.

[cadillac59]

I know you are in Canada so obviously things might be different there. But just by way of an example, this is the way we would approach your situation in California.

The general rule that most experts will tell you (and there was an article about this subject not long ago in one of our professional journals) is really simple:If the kids do not live in your household already, applying for a guardianship will likely not be successful and is not worth the effort. If there is a really serious abuse and/or neglect issue going on it's probably better just to let Child Protective Services (CPS) do an investigation and if they think there is reason to remove the kids let them do so and ask for placement of the kids in your household (I tend to give my clients this advice when I'm asked this question).

The reason for this is that to establish a guardianship when you don't already have the kids with you (in other words you are trying to have them removed from the parent's care and placed in yours) is that you have to show in court that the kids remaining with the parent(s) would be detrimental to them and that placement with you is required to serve their best interests. Not only do you have to prove detriment, but you have to prove it by an elevated standard of proof (clear and convincing evidence as opposed to the lower preponderance level that applies in most civil proceedings). This is a really hard thing to do.

Now, on the other hand, if the kids are already with you and you have assumed the parenting role for a substantial period, the law presumes it would be detrimental to return the kids to a parent or the parents and that it is necessary to continue the children in your care to serve their best interests. In other words, if you have already had the kids for a substantial period living with you the law gives you a leg up so to speak in proving your case (but it does allow a parent to rebut the presumpion by a preponderance of evidence). You still have to prove you've taken on the parenting role by a preponderance of evidence and there is no real definition of "substantial time" under our statute, but at least if the kids are in your household already you've got a better chance of a guardianship. The law is written this way to protect parents' rights and make it hard for a stranger (or even relatives) to come along and take the parents' kids away but at the same time protecting those who have been the good samaritans and taken care of other people's children who have been dropped in their laps by the natural parents (this is all too common with respect to grandparents).

As always, check with a local attorney to get the most definitive answer to your question.

[asking]

Listen to cadillac (above).

Also, if you want to help the kids, think about how you can help them short of taking their parents to court. Talk to the mother. Don't tell her you think she's a lousy mother, as that would hurt her and make her angry with you. Instead, tell her you know she's going through a lot and can the kids visit you. I always figure that if the kids are basically nice, and they would have to be or you wouldn't want them, then she's doing an okay job. It's not necessarily bad that she's not working now. Maybe she feels that the kids need her at home. I don't know enough. But it does sound like you want to help and can. So offer. Kids need love from lots of adults and maybe the mother needs some down time. It's harder to raising kids all by yourself than with a partner.

[JudyKayTee]

And I will add that if the children are in a dangerous situation (and I'm not reading that right now) you owe them a duty to do something.