How can my husband and I receive custody of my niece?

Question

If my brother and my niece's mother are unable to parent, how can we acquire custody so that my niece can have a chance in a stable environment? My brother has 100% custody. The mother has supervised visitation but doesn't try to visit and hasn't been in the picture for several years. My brother is in a position that won't allow him to be there. If his girlfriend isn't given legal guardianship since she's been the mother for the past 5 years, how can my husband and I take over? We desperately want to make sure my niece doesn't end up in the system or foster care when she has so many relatives wanting to take her if necessary. Thank you for any assistance in advance!!

Joanne Reisman · Answer

You probably will need to go to talk to an attorney.  It depends on whether children's services have already gotten involved or not.  I also don't now what you mean by your brother can't parent.  If your brother had legal custody and chidren's services are not yet involved, your brother can leave the child with anyone he wants.  That person doesn't need to get legal custody.  The involvement of children's services is only triggered if the children are not being adequately cared for.  So if for example your brother was leaving for military service or being sent to jail or some other thing that would prevent him from parenting he could, under his rights as the custodial parent, leave the child with his girlfriend or with any other responsible adult.  We don't know what the biological mother's issues are and whether she just doesn't have custody or if she can't parent.  But the biological parents have a constitutional right to have the custody of their children.  So if brother leaves his child with someone other than the mother, the mother  could file to get custody and assertingher superior right to parent over someone that is not a biological parent.  
 
Now once children's services gets involved, they will remove the children and place them in foster care until they can determine the best placement option.  New in 2018 the laws have been changed to that children's services now has to give preference to placing the children with family members over complete strangers.  But that doesn't mean they will.  They still will screen every possible candidate for placement.  They will also hold off on making any decision for permanent placement while they give the parents a chance to make changes with their lives to the children can be returned to live with the parents. 
 
So if there is a juvenile court case already concerning your niece, you will want to hire an attorney familiar with juvenile court law to intervene in the case and keep track of what is going on so you can be considered as a placement option.

Q: How can my husband and I receive custody of my niece?