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Grandparent rights


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#1 Little.Sis10

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Posted 20 December 2012 - 11:05 PM

Me and my boyfriend have been together for four years. We have been living together for three years and have a 10 month old little boy. We have had problems with his family from day one. Me and his family do not get along because they are rude and inappropriate. We have recently had another fall out with them and have decided that they no longer need to be a part of our life because they just cause drama and make our lives a living hell. All my boyfriend and his family does is argue and I do not want that around my son. Now they are threatening us with grandparent rights.

How do I convince a judge that these people are not good for our son to be around? I have stories that proves that they are not good parents in my eyes though I'm not sure if thats good enough for a judge.
First story is when we were in high school we had to pick them up from bars because they were to drunk to drive
Another one was they took their 18 year old daughter to a bar and got her drunk
Those are the only stories that I can think of right off my head but is that enough to keep them away from my son and if not what else can I do to help my case against them?

#2 Little.Sis10

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Posted 20 December 2012 - 11:07 PM

I forgot to put that I'm from Montana

#3 Little.Sis10

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Posted 20 December 2012 - 11:18 PM

Me and my boyfriend have a 10 month old little boy together. We have been together for four years and are not married. If something were to happen to my boyfreind how can we keep his family from getting any legal rights to our son? He is willing to do whatever it takes to make sure they cannot take him away from me if something were to happen to him.

#4 Ted_from_Texas

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Posted 21 December 2012 - 04:14 AM

Which so-called "grandparent rights" would that be? I can't speak to Montana law in particular, but grandparents don't have any intrinsic right of visitation with their grandchildren in any state. Some states allow grandparents to go to court for visitation, but only in very unusual circumstances, and even then only when the grandparent has already formed a close emotional bond with the child, such that severing the bond would cause harm to the child. There's nothing in your brief message to indicate that circumstances exist that would give your boyfriend's parents standing to sue for visitation, and it should go without saying that no 10-month-old child will have had time to form a close emotional bond with anyone except his or her parents. Basically, when a child's parents are together and in agreement, they have paramount legal authority to determine who does and who does not get to visit, for any reason or no reason at all. Unless there are facts you aren't telling, your boyfriend's parents are blowing smoke. Their suit for visitation, should they actually attempt it, will be dead on arrival.

If you want further reassurance, consult a local family law attorney who can explain how Montana laws apply to your particular circumstances.

#5 Ted_from_Texas

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Posted 21 December 2012 - 04:19 AM

When a child's parent dies, sole legal and physical custody, including the right to determine who can form and maintain relationships with the child, passes to the other parent by operation of law -- that is, automatically. Unless your son's paternal grandparents have already formed a close emotional bond with him (which is highly unlikely unless they are the child's primary day-to-day caregivers) they would have no standing to acquire any "rights" concerning the child. Consult local counsel.

#6 pg1067

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Posted 21 December 2012 - 07:21 AM

How do I convince a judge that these people are not good for our son to be around?


Why do you think you will need to prove this to a judge? While your post mentions "threats" relating to "grandparents rights," your post doesn't suggest that anyone has filed a petition with the court seeking an order for visitation with your child. Has something like that been filed?


I have stories that proves that they are not good parents in my eyes though I'm not sure if thats good enough for a judge.


Your opinion about your the parenting abilities of your child's paternal grandparents isn't terribly relevant. Obviously, if you thought well of them, you'd be allowing regular visitation. That said, courts generally leave it up to a child's parents to decide with whom the child will and won't spend time. However, that you and the child's father are not married is something that may allow your boyfriend's parents (and possibly other members of his family) to get through the courthouse door and may have all this come down to a determination of what the court believes to be in the child's best interests. Your post tells us your opinion, but you've told us not facts, and facts are what a judge will be concerned with if it comes dow to it.


First story is when we were in high school we had to pick them up from bars because they were to drunk to drive
Another one was they took their 18 year old daughter to a bar and got her drunk
Those are the only stories that I can think of right off my head but is that enough to keep them away from my son


If it comes down to it, these two isolated incidents -- that happened who knows how many years ago -- probably will not overcome the natural inclination that a child is better off having at least some relationship with its grandparents.


what else can I do to help my case against them?


I don't really understand what you have in mind here. The facts are what they are. From a non-legal perspective, it seems to me that the best thing to do would be for you and your boyfriend to sit down with his parents and tell them that, while you really would like your child to have an active relationship with both sets of grandparents, there are things that have happened that greatly concern you and talk about what can be done. These things are always better resolved outside of a courtroom.

#7 pg1067

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Posted 21 December 2012 - 07:32 AM

I can't speak to Montana law in particular, but grandparents don't have any intrinsic right of visitation with their grandchildren in any state. Some states allow grandparents to go to court for visitation, but only in very unusual circumstances, and even then only when the grandparent has already formed a close emotional bond with the child, such that severing the bond would cause harm to the child.


Montana's grandparent visitation statute (which has been amended twice since the Troxel decision) is actually quite broad. While I haven't looked at any case authority, the law permits a grandparent to seek visitation under any circumstances. The filing of a petition triggers an inquiry into the parent's or parents' fitness, and visitation may be ordered whether or not the parent(s) is/are determined to be fit. In either case, the court must make a finding, by clear and convincing evidence, that visitation or contact will be in the child's best interests. In the case of a parent not determined to be unfit, the court must also make a finding (also by clear and convincing evidence) "that the presumption in favor of the parent's wishes has been rebutted." It's not clear from the text of the statute alone what that means. See Mont. Code Section 40-9-102 (http://data.opi.mt.g.../9/40-9-102.htm).

To the poster: Another thought occurs to me. Has your boyfriend's paternity been established -- either by a court order or by the signing (by both of you) of some sort of acknowledgment of paternity? If your boyfriend has never been determined to be the child's father, then his parents won't have any standing to seek visitation, and I would be a little surprised if they could compel a DNA test to establish paternity.

#8 pg1067

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Posted 21 December 2012 - 07:57 AM

If something were to happen to my boyfreind how can we keep his family from getting any legal rights to our son?


I'm fairly certain that innumerable things "happen to [your] boyfriend" every day. Are you talking about when (not if) he dies? Why would you think his "family" would get rights regarding your son (note, by the way that a "family" is not an entity that is recognized by law as having any particular meaning)? First of all, your boyfriend's "family" isn't going to have any possibility of acquiring any rights to your son unless his paternity has been established. Has that happened? Second, even if his paternity has been established or gets established before he dies, and if your son is still a minor when your boyfriend dies, if you're still alive, you'll remain with all parental rights. Third, if you're concerned about what happens if your child is still a minor when both of you die, each of you can make a will that expresses your wishes regarding your child and explain the reasons for them. However, in such a situation, it will be up to the court to decide, and any court is going to be inclined to place a child with family members unless there is a good reason why no willing family member should get custody.

#9 Guest_FindLaw_Amir_*

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Posted 21 December 2012 - 08:23 AM

To learn more about this subject matter, you may wish to visit the Family Law Center and read Grandparent Rights as a good resource.

#10 Tax_Counsel

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Posted 21 December 2012 - 08:46 AM

If your boyfriend has never been determined to be the child's father, then his parents won't have any standing to seek visitation, and I would be a little surprised if they could compel a DNA test to establish paternity.


I agree with you to the extent it would be surprising if they had standing to pursue a determination of paternity while their son (the alleged father ) is still alive. However, a number of states certainly would allow the parents of the alleged father to seek a determination of paternity if the father is deceased. Montana is one of them. See Montana Code section 40-6-107.

#11 pg1067

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Posted 21 December 2012 - 02:00 PM

I agree with you to the extent it would be surprising if they had standing to pursue a determination of paternity while their son (the alleged father ) is still alive. However, a number of states certainly would allow the parents of the alleged father to seek a determination of paternity if the father is deceased.


I think the fact that the moderator combined two separate threads may have jumbled things here a bit. In response to the first post above and Ted's response, I was saying that the parents wouldn't have standing to seek visitation until paternity is first established. The issues about what happens when one or both parents die were in a separate thread. In any event, I agree with the additional points you made here.

#12 Little.Sis10

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Posted 21 December 2012 - 11:03 PM

Yes he is on our sons birth record as his father. Thank you all for your advice. Though I would like to know if we are found fit parents then how do I prove that our decision of not having them around is in the best interest of the child.

Platinum Contributor-we have tried to sit down with them and set rules for them to follow however that hasn't worked. They have decided not to listen to us or to follow our rules in regard to our son. We spend more time fighting with them then we do actually talking to them. When we try to talk to them all they want to do is curse at us and talk down to us like we are children.

No they haven't filed anything yet though I want to be prepared for when they do or I guess if they do that way I know what to do and how to build a case.

Is how they treat us relevent? Meaning would phone records and recordings do any good in this kind of case? I want to show the judge (if it comes to that) that they are not reasonable grandparents. They get mad at their son if he goes longer then one day without talking to them. They not only get mad but they accuse him of doing drugs (which he isn't) and yell and curse at him. They are very demeaing and rude to us

#13 Ted_from_Texas

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Posted 22 December 2012 - 04:11 AM

"Though I would like to know if we are found fit parents then how do I prove that our decision of not having them around is in the best interest of the child."


You don't have to. On the chance that your in-laws manage to get the matter into court, the burden will be on them to prove that visitation over the parents' objection is in the child's best interest. Absent compelling evidence to the contrary, the law assumes that the child's parents are fit, and that they are the best judge of what's in the best interest of their own child.

#14 Little.Sis10

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Posted 22 December 2012 - 09:50 PM

The other post about something happening to my boyfriend, yes I do mean that if he dies we want to make sure that they could not go to court and try to get any kind of custody of our son. We want to be sure that they will still have no legal rights to him.

#15 pg1067

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Posted 27 December 2012 - 07:26 AM

The other post about something happening to my boyfriend, yes I do mean that if he dies we want to make sure that they could not go to court and try to get any kind of custody of our son. We want to be sure that they will still have no legal rights to him.


You cannot absolutely prevent these things. As I said in my prior response, if you both die before your child reaches adulthood, any one or more members of the father's family could petition the court for guardianship, and courts tend to prefer relatives over non-relatives in such a situation. You are free to express your wishes in your will, but that will not be controlling. Also, just because your boyfriend is "on [y]our son[']s birth record as his father" does not necessarily mean paternity has been established. I suggest you discuss this with a local family law or estate planning attorney.




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