Davis, CA asked in Adoption, Child Custody and Family Law for California

Q: What steps will be necessary to gain custody of my nephews?

My brother has sole custody of my 4year old twin nephews. He has had a tumultuous life, between the drug binges and the incarceration. The only reason he has custody is because of my parents. Recently he has been evicted from his place and my parents believe he is using again. They have been granted temporary guardianship of the boys, but my husband and I both feel that they will benefit from a stable home with us. We have asked my brother for custody of my nephews, with stipulations that allow for unlimited visitation and, upon a mature age of the boys, the ability for them to choose where they would like to live.

He said no, but we still believe the boys would be better suited with us, especially if my brother is using again and on his way to being incarcerated again. What steps do we have to take in order to increase our chances of custody? What circumstances does my brother have to be in in order for the courts to make decision for him?

1 Lawyer Answer
Patricia Ann Simmons
Patricia Ann Simmons
Answered
  • Vallejo, CA
  • Licensed in California

A: In order for you to be considered you must first file a petition for guardianship. Yours will be a competing petition with your parents who have already been granted temporary guardianship. You and your parents should have a meeting to determine which home provides the best environment for your nephews. If you and your parents cannot resolve who will proceed with their petition, the court may set the matter for trial. Therefore, it would be imperative to work out an agreement with your parents prior to any hearing. Your brother can nominate a guardian for his sons. A nominated guardian carries significant weight with the court. If the minors are over 12, they may be asked their opinion as to which relative they would prefer.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.