Custody to relatives...

[adrianzmimi]

My daughter has three children.  Each child was removed from her by DHR and placed in my care.  My wife and I now have full custody of him.  The court approved our request for TOR and we are in the process of adopting him.

The second child...Simultaneous petition filed by my brother in law and the child's aunt.  My brother in law and was granted custody of him.

The third child...My sister in law filed petition for custody.  Child was with her upon approval of DHR and GAL for 16 months pending the hearing.  Child's great aunt and uncle from NC came down and filed simultaneous petition.  Nothing is known about these relatives other than the fact that they have never been involved with any of the children and still refuse to achknowledge the brothers.  The court granted custody to them because of the blood factor.  We are trying to keep the children as close together as possible.  Yes, they live in seperate homes but we are a very close family and they have a relationship with each other and my family (also blood relatives).  We have not been allowed to speak to the child in more than a month because her new guardians won't permit it.  

My sister in law is considering filing an appeal.  Would the McClendon Rule apply here?  Would she only be causing herself more heartache by following through with this?

Any advice is greatly appreciated.

[adrianzmimi]

I should also state that the courts agreed that my sister in law was an excellant caregiver and that DHR stated that removing the child from my sil's family would be "traumatic" for the child.  Basically the desision was based on the fact that other petitiones were biologically related.

[Lee Borden]

Your strongest argument isn't based on McLendon; it's based on the need for these children to have some semblance of a normal family. You had it with the children living in different houses but seeing each other frequently; you won't have it if this ruling is sustained. And you need to make the point that the court may have viewed itself as changing things only for this child but that its ruling disrupted an entire system.

I know it's easy for me to say this, because it isn't my money we're spending, but if your description of the facts is accurate, complete, and not misleading, you have a good case for appeal.

[adrianzmimi]

Hi Lee,

Thank you so much for the information.  Actually what I stated was the facts of the case, nothing withheld or misleading so your answer is music to our ears.  It gives us hope.

[adrianzmimi]

Update and question:

Our attorney filed a motion to reconsider on the Monday following the original decision.  The GAL has been calling my sister trying to convince them to settle for visitation rights (they were not even given visitation).  My sister and her husband have refused and told the GAL that they only want her returned to our family.  This motion was filed around August 13, 2007 and the judge has yet to grant it or deny it.  Until this motion is complete, we cannot go forward with the appeal. 

Is it true that judges don't have a specified time for deciding things of this nature?  Just curious.

[Lee Borden]

Ask your lawyer to discuss Ala Rule 59.1 with you. Here's the text: "No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

Rule 59.1 doesn't require the judge to rule early, but it does say the judge's failure to rule within 90 days is equivalent to a denial. So that means if 90 days goes by and there's no mutual consent filed on the record before the 90 day period, the judge has denied the motion and the movant's 30-day appeal period has begun.

[adrianzmimi]

One more question...

It appears now that  the relatives that have our granddaughter may have perchased her from her mother before the custody proceedings started.  My daughter was given several promises if she would agree to the arrangement (which she did) but now the relatives are not even allowing her to speak to the child.

Is this something that would help our case at this point?

[Lee Borden]

I'm not sure it matters how your daughter was persuaded to transfer custody. Remember that the judge's duty is to look to the best interest of the children, not to make sure that bad people get punished.

And the judge takes the situation as it comes. The judge may agree with you and Mom, for example, that the people caring for your children resorted to trickery to get them, and yet still order that the children remain with them because it would be best for the kids not to uproot them.