Legal Question in Family Law in California
Grandparent and Sibling rights
My brother and his wife were going through a divorce. She was suffering from ill health for years. My brother had primary physical custody of the 2 children ages 3 and 7. My brother had a very acrimonious relationship with his ex-wife's family. Yesterday the wife died unexpectedly in the hospital. The divorce was not final. What happens to the divorce and the pending custody issues? The family is demanding that my brother allow them to see the children for weekend visits--something my brother doesn't want to do. He is afraid of child snatching.
What are the family's rights to the children? Can they demand visitation under grand parents rights? The family has custody (nothing on paper--the boy is just living with them -- he is about 15 or 16) of the ex-wife's son from a previous relationshhip. He is a half brother to my brother's 2 kids. Can the half brother demand visitation under sibling's rights? Would they get it if they do demand it? There may be a malpractice suit regarding the death of his ex-wife--who can sue? Can the parents or my brother on behalf of the kids?
3 Answers from Attorneys
Re: Grandparent and Sibling rights
The dissolution court no longer has jurisdiction and the custody of the children is with your son. Under the United State Supreme Court Case, Troxel v. Granville, grandparents have very limited rights, very close to none at all. As to the sibling, there may be some right of the children to have contact. You son should talk to a child custody attorney who can explain his rights and obligations in more complete detail.
Good Luck, Pat McCrary
Re: Grandparent and Sibling rights
This is why everybody should have a will. I had a client once who dropped dead before his divorce was final (at age 39), the wife got his life insurance instead of his kid!! The divorce proceedings are Abated (they have gone away). Bro gets to make funeral arrangements. Unless wifey made a will during her lifetime, he gets her share of any community property, and any separate property she may have had. If there is substantial property involved, he might have to go to probate court. If I were your brother I would not part with the kids for one minute, let the ex-wife's family sue for visitation. He should prepare for a custody lawsuit -- including consulting right away with a family law attorney-- and should gather proof of his relationship with them including photos and possibly taking them for psychotherapy at a friendly shrink who can later testify. Have the family lawyer make the shrink referral. Expect her relatives to call CPS with bogus abuse charges. Bro should see a personal injury lawyer about possible wrongful death lawsuits, one problem in such a lawsuit is, did he suffer damages as a result of her "untimely" demise!! Perhaps the kids are the best plaintiffs in such a lawsuit. Bro needs to consult a family, medical malpractice, and possibly a probate lawyer in that order.
Re: Grandparent and Sibling rights
You should retain counsel as quickly as feasible. Ordinarily, the family has little rights if a parent remains, however, I would need to look at all docs/etc., to properly advise you.
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