Child custody essentially refers to the right to make major decisions concerning the child in question. This includes decisions such as where the child will live, what sort of education they will obtain, where they will attend school, as well as decisions regarding religion and medical care. Any decision that a parent has the power to make for their child rests with the parent (or parents) who have been granted custody rights by the courts.
Obtaining custody of a sibling is a particularly complicated area of child custody, as courts generally do not grant custody rights to people other than the child’s parents. Adult children are not automatically granted custody over their younger siblings if the parents are unable to care for them.
In order for a sibling to be granted custody rights, they would need to prove to the court that both of the parents involved are unfit or incapable in some way, or the parents are deceased. Alternatively, the parents involved will need to state that they do not wish to have custody over their child. Examples of unfit parenting include drug or alcohol abuse, a criminal history, general instability, or living a lifestyle that is not in the child’s best interest.
Should both parents die, and there is no will stating who will be responsible for the child, third parties with “legitimate interests” are allowed to petition the court for custody. Third parties include grandparents, other relatives such as aunts, uncles, and siblings, and family friends. Third party custody rights are generally only granted in emergency situations.
What is the Process for Obtaining Custody of a Sibling?
As previously mentioned, it is crucial to prove to the court that guardianship of your sibling is necessary and in your sibling’s best interests. However, your first step should be ensuring a custody appeal is even necessary. This can be done by simply asking the child’s parents or legal guardians to relinquish legal custody of the child so you may take over. In some situations, the parents are aware that their child would be better off elsewhere and would like to give their child a better home.
In most cases though, you will need to go to the court or court website in the county in which your sibling lives. Then, you will file all required forms, namely, a petition to be appointed as guardian. If your sibling is Native American, there are additional federal laws that will apply. You will need to know if your sibling is involved in a separate custody case, and if an order regarding custody of your sibling is already in place. If this is the case, you may need to petition for guardianship in the same court as the existing order; this prevents two courts from issuing inconsistent orders.
The court will determine custody using the Child’s Best Interest Standard. If your claim is that child’s parent/s are unfit, you will need to prove how they are unfit. Regardless of the circumstances, you will need to prove to the court that you are capable of providing for the child, including food, clothing, housing, education, medical care, and a stable home life.
The court may order an investigator to interview you and your sibling, as well as a visit of the home where the child will be living. If you can prove that financially, emotionally, and mentally capable of caring for the child, and that being in your care would be in the child’s best interest, you may be awarded custody.
Further, the court may give weight to the child’s preference regarding custody, if the child is old enough and capable of expressing a preference. In families with multiple minor children, the adult sibling might need to show that having custody would preserve the family unit. This is particularly the case if other relatives would not be able to take all of the children.
What Else Should be Considered?
It is important to remember that custody laws vary from state to state. Thus, if you do not reside in the same state as your sibling, or if one or both of the parents contest your petition for guardianship, the process may become increasingly complicated.
The court may require you to notify your sibling’s relatives regarding your guardianship petition. This could pose problems in situations where the parents are deceased and other relatives have been granted custody rights through a will. If the child’s parents are deceased, the court will check for a written will. Some other complicating circumstances include a disabled child, or one who owns significant property.
If the child’s parents are alive and agree to the guardianship, the court may place the child with the adult sibling if such placement is necessary or proper based on the circumstances. And, if at least one parent objects to the guardianship, the child’s best interests will be considered, including whether the child’s well-being would be at risk if left with one or both parents.
Do I Need an Attorney for Sibling Custody Issues?
A knowledgeable and qualified family attorney will be absolutely essential in any attempt to gain third party custody rights. They will inform you of your state’s unique laws, as well as your chances and options considering your specific circumstances.
Additionally, they will file all necessary paperwork in the appropriate courts, and represent you in any necessary court appearances.