Legal Question in Family Law in Florida

Child Custody

My 75 yr old mom has been taking

care of my brother's two minor

children for 13 years. My brother has

a terminal illness. How do we ensure

that my mom keeps custody of the

kids after my brother passes? Their

mom has not had a relationship with

them, however will definitely want to

benefit financially after my brother

passes on their behalf (i.e. Social

Security).

Even though they have lived with my

mom, there hasn't been any formal

paperwork done for legal

guardianship.

Please advise.


Asked on 4/10/09, 7:51 am

3 Answers from Attorneys
Brent Rose The Orsini & Rose Law Firm

Re: Child Custody

Though your brother can "leave" the kids to your mother in his will, you are correct to fear, because the biological mother can take the kids when you brother dies. Her parental rights supercede his will.

When your brother dies, my advice would be for your mother to seek a lawyer and file some type of action to take the kids from their mother on the grounds of abandonment. This is usually done under what's called a "chapter 39" or "chapter 751" action, but the lawyer can help her with that. There's no reason that your mother couldn't file this now, except that, the longer your brother lives, the longer the biological mother is out of the kids' lives, and the better the case is for abandonment because more time will have passed in which the mother is not in the kids' lives.

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Answered on 4/10/09, 10:07 am
Brent Rose The Orsini & Rose Law Firm

Re: Child Custody

Though your brother can "leave" the kids to your mother in his will, you are correct to fear, because the biological mother can take the kids when you brother dies. Her parental rights supercede his will.

When your brother dies, my advice would be for your mother to seek a lawyer and file some type of action to take the kids from their mother on the grounds of abandonment. This is usually done under what's called a "chapter 39" or "chapter 751" action, but the lawyer can help her with that. There's no reason that your mother couldn't file this now, except that, the longer your brother lives, the longer the biological mother is out of the kids' lives, and the better the case is for abandonment because more time will have passed in which the mother is not in the kids' lives.

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Answered on 4/10/09, 10:07 am
David Slater David P. Slater, Esq.

Re: Child Custody

She should be seeking custody now.

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Answered on 4/10/09, 10:53 am


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