Father fails to be granted custody of his child after death of mother

walshb

I never said that representing yourself means that you are not serious. The fact the one side engaged a legal team would likely bode well for him in court. The other side does not engage a legal team would likely not stand to him. Anyway, as mentioned, the stepfather did engage a legal team for the final hearing?

From the point of view of the court and the judge and the legal profession a person representing themselves is not looked on as favorably. There is an almost hostile reception. Judges can and do think that such people aren't taking the matter all that serious.

Jawgap

walshb wrote: »

I never said that representing yourself means that you are not serious. The fact the one side engaged a legal team would likely bode well for him in court. The other side does not engage a legal team would likely not stand to him. Anyway, as mentioned, the stepfather did engage a legal team for the final hearing?

From the point of view of the court and the judge and the legal profession a person representing themselves is not looked on as favorably. There is an almost hostile reception. Judges can and do think that such people aren't taking the matter all that serious.

You're lack of information about the family court is a bit obvious.....

....it is only in the family courts that judges seems to be against lay litigants (perhaps because things get emotional) - in many other courts judge are very tolerant of lay litigants and will go to some lengths to assist them understand the proceedings and the consequences of any course of action they are proposing.

Are you now suggesting, btw, that the judge was biased against the father because he was a lay litigant? How would such bias play out in the arguments previously advanced that the decision made was in the best interests of the child?

walshb

Jawgap wrote: »

....it is only in the family courts that judges seems to be against lay litigants (perhaps because things get emotional) - in many other courts judge are very tolerant of lay litigants and will go to some lengths to assist them understand the proceedings and the consequences of any course of action they are proposing.

What court was this man in?

What is below all about?

"I think one of the clear messages from O'Shea's research is that representing yourself is a mistake - at best the judge will not accord your representations the same weight, at worst they will be openly hostile to you..

One of her conclusions was that

Quote:
It is a finding of this research that the poorest outcomes were for men who were lay litigants or self-representing, followed by non-national lay litigants

Ash.J.Williams

i'm assuming the case is based on continuing the quality of life the child is accustomed to.

walshb

Ash.J.Williams wrote: »

i'm assuming the case is based on continuing the quality of life the child is accustomed to.

I would hope so. I would think so. A court proceeded over this. The bio father had his day and his say.

Jawgap

walshb wrote: »

What court was this man in?

What is below all about?

"I think one of the clear messages from O'Shea's research is that representing yourself is a mistake - at best the judge will not accord your representations the same weight, at worst they will be openly hostile to you..

One of her conclusions was that

Quote:
It is a finding of this research that the poorest outcomes were for men who were lay litigants or self-representing, followed by non-national lay litigants

He was in the Circuit Family Court and the research I referenced was about Judicial Separation and Divorce in the Circuit Court.

It doesn't follow that the rest of the court system is like that.

Jawgap

Ash.J.Williams wrote: »

i'm assuming the case is based on continuing the quality of life the child is accustomed to.

No, not solely - it was about what was in the best interest of the child.

Quality of life is obviously important, but it's not the defining factor. The kid seems to have a decent quality of life, but, for example, is it in his interests to be living remotely from his father, extended family etc. How much time can his guardian devote to his upbringing? What are his living arrangements regarding the new partner etc.

walshb

Jawgap wrote: »

He was in the Circuit Family Court and the research I referenced was about Judicial Separation and Divorce in the Circuit Court.

It doesn't follow that the rest of the court system is like that.

I am not saying all courts and judges are alike, just that not representing yourself is something that can go against you in a legal way, as in not knowing the system, and in a personal way (as in the courts not looking upon you favorably). Nobody can tell exactly what a judge is thinking or feeling. I would always advise someone to get legal aid if they can.

Jawgap

walshb wrote: »

I am not saying all courts and judges are alike, just that not representing yourself is something that can go against you in a legal way, as in not knowing Nobody can tell exactly what a judge is thinking or feeling. I would always advise someone to get legal aid if they can.

it's incredibly difficult to get legal aid - in this case if the guy was earning any kind of a salary or wage he would not qualify for legal aid. It's not an option for most people.

walshb

Jawgap wrote: »

it's incredibly difficult to get legal aid - in this case if the guy was earning any kind of a salary or wage he would not qualify for legal aid. It's not an option for most people.

I understand this. Anyway, would you think the fact that he did not get aid could have swayed a judge against him?

K-9

walshb wrote: »

The fact that the stepfather engaged a legal team to help him instills a seriousness about him and his intentions. This does not go unnoticed in court. The bio father didn't bother to get assistance. This likely would have counted against him in the same way that the stepfather's seriousness counted for him.

Except that it isn't supposed to matter if you have no legal representation.

walshb

K-9 wrote: »

Except that it isn't supposed to matter if you have no legal representation.

Of course. In life a lot of things aren't supposed to matter. Just like the way we dress in certain situations impacts on how we are viewed. The legal profession can be quite haughty when they want to be. No different than any profession.

Jawgap

walshb wrote: »

I understand this. Anyway, would you think the fact that he did not get aid could have swayed a judge against him?

walshb wrote: »

Of course. In life a lot of things aren't supposed to matter. Just like the way we dress in certain situations impacts on how we are viewed. The legal profession can be quite haughty when they want to be. No different than any profession.

Sorry, but you seem to be suggesting that the decision may not have been made wholly in the best interests of the child concerned? - that somehow the system is fine, it's the people (litigants, judges, lawyers etc) who are the problem.

My view would be is that a lot of people, incl the judges, are doing their best in a system that is completely unfit for purpose and is wholly dysfunctional.

The system, for example, doesn't encourage (never mind compel) judges to question 'experts' on their reports or talk to the children. It doesn't allow for any form of ADR, and it rewards those with the deepest pockets.

walshb

Jawgap wrote: »

Sorry, but you seem to be suggesting that the decision may not have been made wholly in the best interests of the child concerned? - that somehow the system is fine, it's the people (litigants, judges, lawyers etc) who are the problem.

My view would be is that a lot of people, incl the judges, are doing their best in a system that is completely unfit for purpose and is wholly dysfunctional.

The system, for example, doesn't encourage (never mind compel) judges to question 'experts' on their reports or talk to the children. It doesn't allow for any form of ADR, and it rewards those with the deepest pockets.

I would have a level of confidence in the system, but it does not work perfectly. It is presided over by humans. Emotions and personal opinions can play a part in outcomes. I would think that many factors were considered in the judgment. The system is the people. The judges/lawyers/litigants and lawmakers.

Do I think the right outcome happened in this case? I can't say. I was not privy to all the facts, and even if I was, it's not an exact science. Personal opinions and subjectivity need to be considered.

A person (judge) hears all the arguments on both sides and that person then makes a decision. Does he/she make it completely devoid of their own opinions or views or feelings? I would hope that they make the decision based solely on the best interest of the child, but I would think other factors also come into play. If other factors do come into play, this doesn't mean a wrong decision was made.

REXER

Jawgap wrote: »

Without knowing the age of the child it's impossible to assess the request.....


.....also isn't it possible that the child is simply doing what it thinks its mother would want?

As for the stepfather, no his wishes should not count - he can repudiate his guardianship any time he sees fit, whereas the father cannot.

Horse cr@p, some "fathers" regularly disappear for months>years on end and then expect to swan back into the childs life like they were never away, causing all sorts of abandonment issues etc for the child.

Jawgap

REXER wrote: »

Horse cr@p, some "fathers" regularly disappear for months>years on end and then expect to swan back into the childs life like they were never away, causing all sorts of abandonment issues etc for the child.

That is unfortunately true - but they can never repudiate guardianship. I think you're confusing guardianship with custody?

A 'proper' dead beat Dad can outright refuse to have anything to do with his kid but he can, for example, still be brought to task and made to pay his fair share of maintenance - even if he wants nothing to do with the child.

In this case, the mother's former partner doesn't need to "disappear for months>years on end" - he just needs to pack the kids things up, drop him off at his Gran's or his Dad's and say "right, that's me done. I don't want to be this child's guardian any more" - and that's it, he's done. The court can't compel him to be the child's guardian or deliver on any commitment he made to the child. He's his guardian, not his adoptive parent.

K-9

REXER wrote: »

Horse cr@p, some "fathers" regularly disappear for months>years on end and then expect to swan back into the childs life like they were never away, causing all sorts of abandonment issues etc for the child.

Yep, this Dad seems to be a very active part of the childs life and wants more.

Jawgap wrote: »

That is unfortunately true - but they can never repudiate guardianship. I think you're confusing guardianship with custody?

A 'proper' dead beat Dad can outright refuse to have anything to do with his kid but he can, for example, still be brought to task and made to pay his fair share of maintenance - even if he wants nothing to do with the child.

In this case, the mother's former partner doesn't need to "disappear for months>years on end" - he just needs to pack the kids things up, drop him off at his Gran's or his Dad's and say "right, that's me done. I don't want to be this child's guardian any more" - and that's it, he's done. The court can't compel him to be the child's guardian or deliver on any commitment he made to the child. He's his guardian, not his adoptive parent.

Barring maintenance the court can't compel a Dad, or indeed a mother to keep up access. Guardianship doesn't really matter that much in the scheme of things, important to have definitely, but counts for nothing as regards access.

diveout

K-9 wrote: »

Yep, this Dad seems to be a very active part of the childs life and wants more.



Barring maintenance the court can't compel a Dad, or indeed a mother to keep up access. Guardianship doesn't really matter that much in the scheme of things, important to have definitely, but counts for nothing as regards access.

It evidently doesn't matter either in the case of the death of the mother.

REXER

Jawgap wrote: »

Seriously?

You're second guessing the grandmother......

Wow, you question the performance of every one else involved but balk at questioning the grandmother???

Jawgap

REXER wrote: »

Wow, you question the performance of every one else involved but balk at questioning the grandmother???

Yes.

She's the only one not invested in the outcome and only invested in the child.

The legal beagles want to get paid; the judge wants to clear their list; who knows what dynamic is animating the litigants; and the experts are just there to write a report and offer an opinion.

Generally, I would think a father tries to do his best by his kids - but I accept that is not always the case.

In my experience, grandparents tend to be more focused on the grandchildren and less interested in the squabbling that goes on around these things - ymmv.

Merrill123

I feel really bad for that father who lost the custody of his own son. I don't understand what made the judge to give a judgement in favor of the mothers partner. I had recently read a blog by Y Family Law in Toronto about what happens to the custody of the child after the death of a parent. I would have posted the article here if not for the forum rules about posting a link. The article really speaks in detail about this matter.

Pawwed Rig

Merrill123 wrote: »

I would have posted the article here if not for the forum rules about posting a link. The article really speaks in detail about this matter.

Mod note - There are no rules about posting links. The reason you can't is you need to have 50 posts. If you would like to pm it to me I will post it.

Pawwed Rig

Merrill123 wrote: »

I feel really bad for that father who lost the custody of his own son. I don't understand what made the judge to give a judgement in favor of the mothers partner. I had recently read a blog by Y Family Law in Toronto about what happens to the custody of the child after the death of a parent. I would have posted the article here if not for the forum rules about posting a link. The article really speaks in detail about this matter.

http://www.supportforstepdads.com/2014/08/death-parent-alter-child-custody-agreements/

Jawgap

Pawwed Rig wrote: »

http://www.supportforstepdads.com/2014/08/death-parent-alter-child-custody-agreements/

Seriously, if 'stepdads' want to be considered for custody then let them get in the game properly.......when they make a custody application they should sign a binding undertaking to accept the outcome of the process and to share in the financial responsibility associated with bringing up a child, regardless of that outcome. Because if the real Dad loses, he'll still be liable for maintenance payments, so why shouldn't the stepdad? After all if they are as committed to the child / children as they make out then surely they'd want to do right by them?

I wonder how interested stepdads would be if they suddenly found themselves staring down the barrel of a financial commitment?

diveout

Jawgap wrote: »

Seriously, if 'stepdads' want to be considered for custody then let them get in the game properly.......when they make a custody application they should sign a binding undertaking to accept the outcome of the process and to share in the financial responsibility associated with bringing up a child, regardless of that outcome. Because if the real Dad loses, he'll still be liable for maintenance payments, so why shouldn't the stepdad? After all if they are as committed to the child / children as they make out then surely they'd want to do right by them?

I wonder how interested stepdads would be if they suddenly found themselves staring down the barrel of a financial commitment?

I think step dads will be liable for money and soon. It will happen. This step dad wasn't even married to the mother so...technically... legally not family. Just a boyfriend. Weird.

Diog1

Ok got to page two on here and have to comment... I have seven children two from a de-facto relationship and 5 with my husband. I had my first two children in the UK to a British man, Whom yoyo paid maintenance for his children. When I got with my husband and we moved in together I made a will naming him as a Co-Guardian of the two older children.
This meant that if I died their dad could not make all the life decisions for them they could still remain in Ireland if they wanted to, and in the event their dad was not interested in them they had a responsible parent to bring them up.

However I was informed that if their dad wanted to, he could gain full custody of the children. He would still have to give access to my husband and as I had more children I wanted them to know their older siblings. I'm not sure how the legalities are now but my ex was not good at paying or visitation and even told the child support agency in the uk if they went for money from his account he would give up work....(charming hey)...

Funny thing is both my older kids are now in the UK and with their dad, grass is greener, apparently he has the money to shower them with now....

I think if the father truly is a good guy he will appeal the decision they can not tell you that a minor can know the way of the world, and if the father is in the same area and pays for his son then he is entitled to full legal custody of his child. This does not mean that the step father will not get access either.

Children adapt well to moving homes and changes the younger they are the better, its when they are older that you start to have problems. The father should get second and third opinions from different psychologists. Make time to visit his son everyday/ evening show an interest in his hobbies and generally be there for the grieving process, its bad enough he has lost one natural parent without being told another has no rights at all.