Emancipation

[Brandon2527]

I am a 15 male that lives in the state of Indiana. My mother recently passed away and the custody of myself is in question. I do not want to live with my father who is trying to get custody of me. I want to live with my grandmother and aunt who have been my neighbors for 15 years.
In case I lose this case, I am looking for other alternatives. What are the requirements for becoming emancipated?
Brandon Brandon2527@aol.com

 

[dorenephilpot]

In Indiana, when the custodial parent dies, the noncustodial parent gets first dibs as far as custody is concerned.

HOWEVER, because you are past the age of 14, where a child has some say in where is going to live, the judge would probably listen to you if your aunt or grandma were to petition for custody and if they were fit to take care of you.

Really that's the best route from your description of your situation. Ask one of them to fight for you, and the rest should take care of itself.

Best of luck to you.

 

[I AM ALWAYS LIABLE]

My response:

It would be a waste of money for your grandma or aunt to "fight for you" in light of the "Troxel" decision. Dorene is correct that daddy will have "first dibs" on you, however, because of the "Troxel" decision, that's where the "dibs" end (unless there's something legally wrong with daddy).

IAAL

 

[dorenephilpot]

Indiana case law and Supreme Court precedent provide that dad has superior rights.

However, Indiana cases and statutes also provide that if the person wanting custody can show that the natural parent is unfit, has abandoned the child or allowed the child to bond with others to the point that the child has created a bond with others that cannot and should not be severed, then these can be useful for grandma and aunt.

Furthermore, Indiana has third-party custodian statutes that can be used for custody.

Troxel would trump, I realize, but the practicality of it is that once they ask for custody, dad just might say OK, and a war wouldn't necessarily have to be waged, especially is that's what our young correspondent wanted.

 

[LegalBeagle]

I do not see how 'Troxel would trump' in this case. If it was shown that the father has had next to no involvement in the childs life and yet the aunt has been there for the last 15 years, then I do not see where Troxel would come in and override everything and send the child packing to the father. Even worse if the father lives in a different school district, had huge CS arrears to the mother and looked like he only wanted custody to ensure he did not have to pay any more CS..

 

[dorenephilpot]

Yep. The details of the post were pretty sketchy, so I think we were all speculating about how things might go in a hypothetical sense....

Good to see you're up and at 'em so early this morning, LB.

 

[DeeKayH]

Hi All,

Maybe I can help clear up some of the details. This is his "Other Aunt" it is My older sister and mother currently fighting for custody of Brandon. His Mother was diagnosed with Aplastic Anemia in 1994 and given 3yrs.To live, She lasted 7. In that time she managed to raise a well spoken, intelligent, strong-willed young man. Some of the details that I think may help you (since I can't give many, as this is an ongoing battle, and a court order stops my nephew from receiving details of the case)

1. Brandon has lived since birth (1986) on his Grandmothers property, in a mobile home owned by his mother.
2. His father Also lived in that Mobile home for 3, 1/2 years, (1985-1989) but paid no rent. He moved out at the request of Brandon's Mother, because of irreconcilable differences.
3. Brandon has been in the same school district since kindergarten, and is in the top of his class at this time. He is an office cadet, and makes the daily school announcements. He is in band and participates in several other school functions. His father never went to any of his T-ball, or later softball games, and has attended few of his school activities which include choir, and band.
4. The reason that my family filed for custody for Brandon was at Brandon's request. At the Hospital when we were told that there was nothing else that could be done for his mother. Brandon's second reaction was. "Oh my God I don't want to live with my Dad, I can't live with him"
5. Brandon has had regular visitation with his father since 1989, and his father was current on all child support at the time of his Mothers passing.
6. Brandon continued to live with his Grandmother for a month after his Mothers passing, at which time his father filed for the SSI that was to go to Brandon. He found out that he could only receive this money if Brandon was living with him. So, he picked Brandon up for a "visit" and never took him home. Since that time Brandon has been living with his Father and Step-mother, with visitation every other weekend with his Grandmother.
That is all I can think of (other than a personal opinion that would sound harsh) If you have any further questions I could answer privately, PLEASE email me and ask. Any help you could offer is greatly appreciated!

 

[dorenephilpot]

Given the facts described, Grandma and Aunt will have a tough fight.

Even though dad wasn't as involved as he could have been, the fact that dad paid support regularly and exercised visitation regularly mean that they cannot argue abandonment.

So, unless he's unfit in some way (crackhead, pedophile, ax murderer), it's going to be tough for them to wrest custody from him.

The fact that they have been so involved in the boy's upbringing and the fact that he's over age 14 both work in their favor, however.

A custody fight on the facts given here will be expensive and will have a good chance of losing.

 

[LegalBeagle]

I agree.. #5 is the main point, the rest is insignificant compared to this. Also, since the child is currently with the father, it will be next to impossible for the aunt to get a judge to 'take' the child from the father.

 

[DeeKayH]

Since this is going through court at this time, Brandon is looking for options if he should lose. Can you please advise him on what is needed by the state of Indiana to become emancipated?

 

[I AM ALWAYS LIABLE]

My response:

Indiana does not recognize, nor does it have laws for, Emancipation of a Minor. Only the parents can terminate the parent/child relationship.

IAAL

 

[DeeKayH]

So, what options does he have if his father wins custody?
How much weight, will the judge give to Brandon's wishes?
Is there anyway his father can stop him from speaking to the Judge. (I ask this because his father has told him he won't allow it)
I really appreciate your time, patience, and information. I am currently living in Guam, so my resources to helping my nephew are limited. I talk to him everyday, and know he is scared of the possible outcome of this. I just don't understand how everyone involved, can talk about "what is best for the child". Yet, they consider forcing him to live in an environment that he has stated he doesn't want to be in.

 

[dorenephilpot]

Unforunately for his situation, the courts have found that it is in the "best interests" of any child for him to be with his natural parent, over all others, unless the natural parent is unfit or has abandoned the child.

I hope he'll be willing to give his dad a chance at a good relationship.

It's going to be tough for BOTH of them. The easy thing here would be for dad to let him stay w/grandma/aunt, but he's trying to be a dad, so I hope that Brandon will go into it with as open a mind as possible.

 

[Brandon2527]

So There's No Way Out?

Just to make sure I understand what everyone is saying. If my father is awarded custody, would I be forced to live here until I'm the age of 18? There would be no other alternatives?
When I do reach the age of 18, will I be able to move out of my father's home and go back to my grandmother and aunt's?
Like my aunt has said, everyone who has posted has been a tremendous help and I would like to personally thank you all.

 

[LegalBeagle]

All you can do is try and ensure your voice is heard and hope that it makes a difference. Failing that, once you are 18, you can do as you please.

My advice if your father does win custody is to make the most of it, concentrate on your education and work towards securing a better future for yourself.