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helpme1978

Need advice on how to get my son back from my sister

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I stay in Tennessee with my children.  My sister who resides in Nebraska ask me if she could take my son ( 14)  up there for the summer because her son (14) was having issues with the kids and making friends.  I said fine, she came to TN and got him.  Then she called and begged me to let him go to school up there because he and her son were doing so well. So I said ok. I called and talked and talked to him all the time, sent money, sent his B-day gift, normal mother stuff.  In April I told my sister that I would be down for the 4th of July to pick him up for my 3 day weekend. June 26th ... i havent heard from her since. I went to NE as planned. She have packed the house and the kids and moved. The neighbor said they left about a week before.  Went to her job. She called the police. I talked to the police. They talked to her. They said custody / civil.  *the law states in NE that anyone caring for a child for 6 months makes them a guardian and since he has been in NE for over 6 months i have to file (something ) in NE saying return my child. ( i think)  I do not have lawyer money first of all. I dont think this should be so complicated.  I just need some advise as to where I should begin looking as to what I should file.. and in what court... TN or NE.>?  Thanks in advance

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I find it beyond baffling that you would just ship your kid off to live and go to school in a different state for a year just because your sister said her own kid is having trouble making friends.  What about your son's own friends?  And what about the father (no issues about the father having visitation)?

 

In any event, what the police told you is plainly silly, and I think you ought to make a phone call and speak to someone in charge and ask for a citation to the supposed law about which you were told.  You should simply be able to pack up with your son and take him back home.

 

That said, if the police ultimately won't get involved and you can't get access to your son in order to bring him home, you'll need to file something with the court in Nebraska.  Even if any Nebraska attorney did post here regularly, there's no way for someone to walk you through this on a message board, so I suggest you at least try and find a lawyer in Nebraska who will give you a free consultation.

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I have never heard of a provision in any state that confers automatic legal guardianship on anyone, regardless of the time the child has been in his or her care.  My (brief and superficial) research reveals no such law in Nebraska.  If the person who told you about this law is unable or unwilling to cite a reference to the actual statute so you can read it for yourself, it's a good bet that the law doesn't exist, or that they have misinterpreted an existing statute to mean something entirely different.  If you can get access to your son, I suggest you pick him up and take him home, and let your sister worry about the legalities and logistics of taking him back.

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Right I understand your confusion. Father is in Washington DC. No real contact.  My sister stayed with me in NE for 5 years.. I moved down to Memphis.. and that summer.. (couple months later she called.).  We have always stayed together.. until the last couple of years... I really didn't think that it would be a problem. The police said that I would have to prove that I have full custody in court.  I just dont know what to file... where to file.. and how in the heck it is possible for her to refuse to return him and that's OK..??????  Why am I facing having to spend 2500 down for an attorney to get MY son whom I have sole custody.  I have 6 more children in my care now.. I am a full time working single mother... all i am asking for is some guideance as to what i am supposed to do now.

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Ted.. 

 

Nebraska Revised Statute 43-1312.01

(1) If the permanency plan for a child established pursuant to section 43-1312 does not recommend return of the child to his or her parent:

(a) The child is a juvenile who has been adjudged to be under subdivision (3)(a) of section 43-247;

(B) The child has been in the placement for at least six months;

© The child consents to the guardianship, if the child is ten years of age or older; and

(d) The guardian:

(i) Is suitable and able to provide a safe and permanent home for the child;

(ii) Has made a commitment to provide for the financial, medical, physical, and emotional needs of the child until the child reaches the age of majority or until the termination of extended guardianship assistance payments pursuant to section 43-4511 or 43-4514;

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Helpme, you seem to be reading statutes completely out of context, and who knows why.  Nothing you've said indicates there's a court-ordered placement or guardianship.  (You also seem to be clicking into a section of chapter about kids eligible for adoption -- http://nebraskalegislature.gov/laws/browse-chapters.php?chapter=43 -- and who knows how you arrived there.)

I suggest you might want to talk with the commanding officer of whatever precinct is answering your call, and say you've got a strange situation on your hands where your sister may be telling stories and yet you're having people under his/her command telling you that YOU have to prove you have "full custody" of your own child, whereas evidently your sister needs to prove zippy in terms of her authority to keep him with her.  If you get blown off, maybe, just maybe, you can get one of your legislative representatives or his/her staffers to call someone in NE and ask them if they have their head up their posterior.

 

It's a tad odd for a police officer to declare you need to prove you have custody of your own kid -- vs. just show them a birth certificate if need be -- instead of them demanding your sister establish by what authority/court documents she has legal "guardianship". 

I'd also avoid offering up comments about the weird reasons behind allowing your child to go live with your sister (you say "for the summer" but it appeared that you sent the kid well before April). 
 

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Funny.  I did that.  I showed them a birth certificate.  I showed them where i had documentation of Revocation of Power of Attorney (so he could go to school).. I had all that... they said civil.. the sheriff office said no way they wont get involved.  The only half A** assistance I got was from the police department in my town who told me to file a " Custodial Interferance " paper.. and they would process it.  She said they are so back logged and that children are at the bottom of the priority list..  Hint.. hint.. ( memphis #1 for major and domestic crimes.).. I guess I will start with the Nebraska police department.. again.. it just seems like that is a dead end.. they were so stubborn and not helpful.. they just simply said we will not get involved.  So now 1000 dollars later.. of rental cars and traveling and gas.and a room. i still do not have my child.

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Nebraska Revised Statute 43-1312.01

 

I'm not sure why you quoted a statute that, on its face, has no conceivable application to your situation.  There's no "permanency plan established under section 43-1312," right?  FYI, section 43-1312 deals with the placement of a foster child following the removal of the child from his or her home by local child welfare authorities.

 

 

 

how in the heck it is possible for her to refuse to return him and that's OK..?

 

Here's the problem.  You willingly gave your child to your sister and allowed him to remain with her for a year.  Police will frequently refuse to involve themselves in that sort of situation.  By contrast, if your sister had kidnapped the child, the police almost certainly would get involved.  I happen to believe that, given the facts stated, the police should force your sister to turn your son over to you, but it doesn't really matter what someone on an Internet message board thinks, and no one here is saying that anything you described is "OK."  At this point, you have four options:  (1) whine about the situation and do nothing; (2) try to convince someone higher up in the police department that the police should intervene; (3) retain a local attorney to assist you; and/or (4) engage in self-help.  Unfortunately, because you willingly turned your kid over to your sister, any legal action will have to take place in Nebraska.

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Right.. and I was looking for some sort of simple answer..( for my self-help quest).. like "just go file this in the NE courts.. and she will have to return him".  It should not be this complicated... it really shouldn't.

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No, it oughtn't.  As to police refusal to help, it's not like we were talking about a dog/puppy to which two separate people are claiming ownership; then again, you don't hear about moms having a kid they're happy to have live away with them for an extended period of time (you don't say how long he's been there, though another poster indicates a year), even if the parent has a passle of other kids to take care of.  Were I a cop and I had for instance two *parents* claiming different stories and neither could produce a court custody order saying X, I'd have to say "uhm, sorry, you'll have to take it to court." 

 

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This response is NOT intended to create an attorney client

relationship.

 

Presumably, you either have your divorce decree awarding

you physical custody against the biological dad or established

paternity which Paternity/Probate/Family Court/Circuit/Superior/

District Court awarded you custody? 

 

I'd also stop in at the closest local FBI office to attempt to

ascertain what assistance they can provide you,

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Ok, no the father has as much custody as I do.  The child was born thru a valid marriage.  We are still married although we do not live together.  We have not lived together for several years. (12) although we have never proceded with a divorce.  I have raised the kids on my own for the most part.  I still have contact with him... so I guess Is there something that the father  could do to help?? 

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so I guess Is there something that the father  could do to help?? 

 

Of course he could.  I previously laid out your basic options, all of which could be accomplished with or without assistance from the father.

 

By the way, remaining married, but separated, for over a decade is a terrible idea for all sorts of reasons.  Just read some of the horror stories that people have posted here.

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Ok.  So thru all the post I have concluded that I need to start climbing the ladder of law enforcement and hold off on filing some sort of petition in juvinile court.  I will start there then. ( yea.. pg1067.. your right.. the weird marital situation will be the next thing that bites me from behind.. thanks for the heads up... I will get that taken care of also.)

Thanks,

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Don’t be too surprised if the police refuse to get involved no matter how high up the ladder you go. In my experience, in situations like this they’ll treat it as a civil family matter and won’t act without a clear order from a court that says you are entitled to custody. Without that, they don’t really know who has the rights to custody of the child and they aren't going to try to figure that out — that's not their job. They aren’t lawyers and they aren’t judges. Their main job is investigating crimes and making arrests. That’s not to say it you shouldn’t try; I just wouldn’t high expectations that you’ll get this resolved that simply. In the end, you may well have to go to court to get an appropriate order.

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Tax_Counsel... Thankyou! You are exactly right.. that is exactly what the police and sheriff's department relayed to me!  Now.....  I cannot afford the out- of - state rates that the attorneys down there are trying to charge me..  I need to do this myself.  I do not know.. cannot find.. dont know where to start looking... what is the (appropriate paperwork..)..  there is no form that says give my child back.. i have custody.. i need the correct LEGAL terminology to begin my search for the correct form to file into the courts down there.. I contact Nebraska District Court.. they are not allowed to tell me the form either.. someone out there knows what i need to file.. without me paying a lawyer 2,500 dollars to file a petition on my behalf.

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Have you called the state police, btw?

If you've pestered general counsel's office (if there is one) or chief of city/county police about its actual policy and gotten a definitive answer of "we don't care", I'd move along.  If not, I wouldn't just yet.  Again, if the sister has declared herself as your sister v. lied and said she's the mother, and your identity is not dubious and you've also produced a birth certificate that they've no reason to think is dubious, the law won't prevent them from asking the sister to cough up a document purporting to show that she's got lawful custody of the kid (and if all she has is the legal guardianship document you issued for purposes of enrollment in school, etc., and you've revoked that document ...).

*  *  *

 

If there is indeed a preprinted form for a given clearly identified situation, there's no reason other than policy that a clerk isn't in a position to point you to the proper form (or, if no form, to other cases on file with similar end goal).  That's legal information, not legal advice (many court systems ... likely NE included ... have a very healthy self-help resources and info on their court sites).  You're free to pester the administrative or chief clerk of the court IF you've ascertained from the state court system site that you cannot find the correct form. 

 

The court, however, is typically free to have a policy whereby it allows clerks to blow you off for any such question, and indeed in some clerks will refuse to even look up a case without being first provided a case number ... and refer you to the case judiciary search database to look it up. 

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