Brother doesn't want to go to court....

[nomadant]

 I am  coming to you guys regarding a court case for custody. I'm doing this for my father who is a bit computer illiterate so just think of me as him. My mother passed away a few weeks ago and since then my grandmother has had my little brother and is not willing to let him come to live with us. We went to court about a week ago and the judge did not give us the right to take my brother from the household (which I thought was pretty ridiculous). He said he needed to hear her side of the story first. So he set a new court date of May 1st. In this time we found out through my brother that my grandmother plans to take him to court and not only that but she had told him to say he wants to live with her. He is absolutely petrified of going, is there anyway to stop her from taking him? I mean I hate to see my brother like this and I know my father feels the same way. Any help would be greatly appreciated. The time for court on monday is 1:30 so we would have the morning to do whatever would need to be done in order for her to be stopped from taking him out of school and bringing him to court. Thank you in adavnce.

[Cookiemomma4]

I really think that we need to know more about your situation.  How old is your brother?  Is there some reason that he was not already with your father (abuse situation or some other reason?).  Was there a custody order in place before your mother's death or other custody arrangements?

[nomadant]

My brother is 8 and the only reason he wasn't with my father was because when my mom left six years ago she took him with her and went out of state (which my dad knows now he shouldn't have let happen) and left me with my dad.  Neither my dad nor her had any papers saying they had custody of my brother or myself.  There was never any abuse on my fathers part. For the past 4 years my mom was living with my grandmother so in turn so was my brother.  We've also heard she's got some type of paper (non-legal) that supposedly my mom signed saying she wanted Nicky (my brother) to live with my grandmother. The way I'm thinking is though this wont hold up in court because my mother never ha physical custody of my brother to begin with.  Am I right thinking like that?

[Cookiemomma4]

If what you are saying is correct, you should be right unless they can claim abandonment.  Your brother is most likely so young that he will most likely not be asked to speak in court.  More likely if they try to push it is that he will be asked to speak with the presiding judge in chambers with just a recorder of the courts.  OR your father could push that he speak with an evaluator, from what I have heard, and they can then not testify to what he has said but infact what would be in his best interest based on their conversation.  
Sounds like a sticky situation to me, but if your father has kept up contact even over the distance it should be pretty much an open and shut case...but that is difficult to say when dealing with the family courts.  
Please keep in mind tha everyone must consider your brother's well being in this case.  No doubt he has gone through a whole lot with loosing his mother...and then to have someone trying to make him choose between his "home" and his father is not a fair thing to do to a child.  This is not a child's decision at all!  Asking him to decide on either side is cruel IMO.  
Good luck...and I hope this turns out in Nicky's best interests!

[CustodyIQ]

If the child has a bond with the father, the father should be able to assume custody of the child, if there are no other pressing factors.

The mother's wishes are irrelevant.  The matter is for a court to decide.

If the grandmother has been acting as a parent for 6 years to this child, it's possible that a court may make temporary orders not to disrupt the status quo, and instead order a custody evaluation.

It really depends upon the state law, if any, that governs this situation.

It's complex MAINLY because there was never any custody ruling previously.  If dad had gotten joint custody prior to mom's death, the situation would be pretty cut and dried.

Your dad needs to consult with an attorney.