BM deceased, how to proceed?

[rm1759]

Soc, I asked you some questions before about this possibility.  BM passed away last monday.  State is Florida, we had joint legal, with her as the primary residential parent.  BM, daughter (8) and grandmother all lived together for daughter's entire life.  Ever since BM was diagnosed as terminal, we have been getting along well.  I haven't seen much of my daughter for the last two months, except for frequent short visits, because I wanted her to spend as much time as possible with mom.

Daughter is still in her grandmother's house.  I want to make a gradual transition to my home over the next 6 weeks, adding 1 overnight per week.  I know that grandma wants custody, but I also hope that we don't begin any kind of fighting for daughter's sake.  I want grandma to continue to be an important part of her life.  

Also, we live about an hour apart.  I would like DD to finish out the year in her current school (4 weeks left).  I am willing to do the drive, but grandma works at the school, so it's convenient for her.

Questions:

1) I have been told I can just go and get daughter now, but I would like to do this with the transition approach, am I "opening the door" for grandma to go for custody b/c I am allowing her to stay there for these 6 weeks?  

2) I am also filing to terminate child support, arrears, and name me as the primary residential parent, the judge wants a death certificate.  Is it extremely important for me to get this petition filed before grandma tries to file a temporary custody order?  

3) Grandma keeps telling me she will get me the cert. soon, but it's been 10 days now, and still no copy of the death certificate.  I have checked online, but it is not listed in the county's records, is there any way to get a certified copy of this sooner?

4) DD is in counseling, and the counselor and I are on the same page.  I have not explicitly told grandma that DD will be living with me (I am trying to make everything go as smooth as possible, I think it's still too soon for her, she just lost her only daughter).   If we make any kind of agreements between gma and I in front of the therapist (such as "Dad has custody of DD, but we want her to continue in school, so gma will provide after school care for DD until the end of the term.").  If the therapist' testifies to this, could that be a tool in case she tries to go for custody, and claims that I was willing for her to have custody by letting her stay there?

5) I really feel like there's no good solution for this, any other advice on a course of action that will ensure that a) I have sole custody and b) still keep a good relationship with grandma?


6) if gma were to try to get a temp. custody order, would she have to serve me first, or could she do it ex-parte? (I believe that's the right term)

7) any other suggestions?

[socrateaser]

>1) I have been told I can just go and get daughter now, but I
>would like to do this with the transition approach, am I
>"opening the door" for grandma to go for custody b/c I am
>allowing her to stay there for these 6 weeks?  

If there was an obituary in the paper, get a copy of that. That is public notice of the death, and should be sufficient evidence.

Try to get a copy of the death certificate from the health dept. or medical examiner or whomever issues them in your county, but, regardless, go to the family court, TODAY, and file an emergency exparte motion for sole custody and for termination of support.

Do not let the court clerks tell you what the judge wants. Go before the judge with evidence of the death. You don't need conclusive evidence. The obit should be sufficient. An uncertified copy of the death cert should also be sufficient.

Get as much evidence as you can and then GO TO THE COURT AND FILE YOUR MOTION. DO NOT TAKE NO FOR AN ANSWER FROM ANYONE (except the judge).

File the motion, then go get your child. Do NOT tell the court that the child is living with the grandmother, unless you are directly asked. You can say, "My daughter is at her grandmother's home, right now." Which is true, right?

>3) Grandma keeps telling me she will get me the cert. soon,
>but it's been 10 days now, and still no copy of the death
>certificate.  I have checked online, but it is not listed in
>the county's records, is there any way to get a certified copy
>of this sooner?

Grandma is jerking you around. You're gonna get blindsided. 10 days is ridiculous. Grandma's probably trying to scrape together the money for a lawyer.

>
>4) DD is in counseling, and the counselor and I are on the
>same page.  I have not explicitly told grandma that DD will be
>living with me (I am trying to make everything go as smooth as
>possible, I think it's still too soon for her, she just lost
>her only daughter).   If we make any kind of agreements
>between gma and I in front of the therapist (such as "Dad has
>custody of DD, but we want her to continue in school, so gma
>will provide after school care for DD until the end of the
>term.").  If the therapist' testifies to this, could that be a
>tool in case she tries to go for custody, and claims that I
>was willing for her to have custody by letting her stay
>there?

Maybe. Don't count on the counselor being on your side in court, unless you have some written evidence from the counselor supporting your belief. Counselors frequently patronize the parents.

>
>5) I really feel like there's no good solution for this, any
>other advice on a course of action that will ensure that a) I
>have sole custody and b) still keep a good relationship with
>grandma?

Tell grandma that she can come visit your child as often as she wishes. That's a good solution. Stop feeling guilty, because it's destroying your ability to think clearly. Go get the order, and then go get your child.

>6) if gma were to try to get a temp. custody order, would she
>have to serve me first, or could she do it ex-parte? (I
>believe that's the right term)

She could do it exparte.

>
>7) any other suggestions?

If the court refuses to hear your emergency motion, and sets a regular hearing instead, then I would just go get the child. I strongly recommend that you hire a lawyer because the judge will be more likely to believe the attorney, and once you have an order, grandma is in a much worse position, tactically. But, either way, I would get the child -- if you don't, and grandma files for custody first -- you're screwed.

Stop thinking and start doing -- 10 days is WAY to long to have gotten nowhere with this issue.

[rm1759]

I met with my attorney a little while ago.  He said it was the judge who told him he needed the certificate.  So, he recommended that we go ahead and file the petition and UCCJEA affidavit today, with terminology on there that the certificate is forthcoming.   I don't believe it will go to the judge until we provide the certificate.  My attorney also said that he has the impression from the judge that once the certificate is filed, it will be signed off without a hearing.


1) If grandma files an emergency order as well in the next few days, will filing this first be of any benefit?

2) If she files a motion ex-parte, and there is my motion already there, also filed ex-parte (but still waiting on the documentation), what happens then?

My head tells me your advice is the way to go.  It would just make it all so much harder for my daughter.  We are meeting with her therapist tonight (grandma, daughter, me, and my wife).  I have a feeling I will know much more afterwards regarding grandma's intentions.  I think I will wait until after that to decide whether to just force the issue, or to wait a little while in the hopes that showing some trust to grandma will help everyone out in the long run.

The therapist has already told me that my daughter needs to be living with me, and not grandma.  He also said that he would testify to this if I needed it.  We have been seeing him for 2 years now going through the custody issues, at first he wasn't "on my side" but after seeing everything that has happened, he is now firmly there.  I believe him when he says this.

[socrateaser]

>1) If grandma files an emergency order as well in the next few
>days, will filing this first be of any benefit?

Well, if grandma doesn't know about your case, and she files under a new case number, it's entirely possible that a different judge could issue an ex parte temporary order in her favor, after which, you would be forced to consolidate the two cases. In short, your filing first doesn't really help on its own.

However, an attorney representating grandma, would want to know who the other parent was, so as to at least make a cursory attempt to provide you with fair notice of the emergency hearing (e.g., "Petitioner's attorney tried unsuccessfully to contact the child's father prior to the hearing." -- meaning, attorney's clerk dialed your home phone and hung up after the first ring).

>
>2) If she files a motion ex-parte, and there is my motion
>already there, also filed ex-parte (but still waiting on the
>documentation), what happens then?

Depends on the court. Big counties usually have a separate judge who hears ex parte emergency motions, so that judge wouldn't know about your filing unless he looks in the computer prior to ruling. This is not something that I'd want to bank on happening. In small counties, there may be only one family law judge, and that would be the same judge, who, if he/she has already read your motion, would tell grandma's attorney that a hearing on the matter is already set, so the emergency motion is denied, because grandma's attorney has constructive notice that the father has an attorney of record, and that attorney should be given an opportunity to appear and defend.

>
>My head tells me your advice is the way to go.  It would just
>make it all so much harder for my daughter.  We are meeting
>with her therapist tonight (grandma, daughter, me, and my
>wife).  I have a feeling I will know much more afterwards
>regarding grandma's intentions.  I think I will wait until
>after that to decide whether to just force the issue, or to
>wait a little while in the hopes that showing some trust to
>grandma will help everyone out in the long run.

I wouldn't bring your wife along. That will annoy grandma, who just lost her child.

>
>The therapist has already told me that my daughter needs to be
>living with me, and not grandma.  He also said that he would
>testify to this if I needed it.  We have been seeing him for 2
>years now going through the custody issues, at first he wasn't
>"on my side" but after seeing everything that has happened, he
>is now firmly there.  I believe him when he says this.

Well, you're a more trusting soul than I am. If I were you, I would be sitting in the health department/medical examiner's office until someone gave me a copy of that death cert.

[rm1759]

OK, thank you very much, soc.  If you like, I will post back in the next day or two when I have more info and/or results...  

p.s. I am following your advice on the cert.  She passed in a hospice program at home, so the medical examiner's office is not involved.  I  am trying to get in touch with hospice to see if I can get it from them directly.

[SadStepMom]

>My head tells me your advice is the way to go. It would just make it all >so much harder for my daughter

Listen to Soc.

I normal don't post on this board unless it is a question to Soc, but I wanted to say something about you worrying about making it easier on your daughter.

I completely understand where you are coming from on that, but I don't think you will necessarily make it harder on your daughter.  You said it yourself, the Grandmother just lost her only daughter, she is greiving, she needs to deal with her grief.  You and your wife are in a much better place to focus on your daughters needs right now.  Also I think that if everyone involved knows that the change is coming in 6 weeks, it makes you focus on the sad part of it (leaving Grandma) more than accomplishing something positive.

So my advice is to listen to Soc and follow what he has told you fully and completely, not just partially.  

[whippertizzy]

I just wanted to add that when my dh passed it took 10 weeks for the certificate to be issued.

[blank1]

I saw from your profile that you are in FL....you have to get a death certificate from Tallahassee after the county sends info in and it's recorded.

10 days may seem like a lot in some jurisdictions but it easily took my sm that long when my father died (in home hospice as well).

http://www.doh.state.fl.us/planning_eval/vital_statistics/deaths.htm