Third party and attorney

[janM]

My son was given custody of his boy by his ex-girlfriend nearly 3 years ago. The boy has been living with me and my husband (son's dad) for about 6 months. I consulted an attorney about options re: guardianship, custody, etc. He said the best option would be to have the parents both agree to changing custody to me and that he could draw up an agreement (not sure if it's gonna happen, but...).

I presently have Power of Attorney through the new Ohio law which is signed by both parents and filed with our juvenile court.

1. If this were the case, would this attorney be representing the parents, or me?

2. And if it's the former, this would mean I could not use him in the future for custody matters, correct?

3. Would this mean I should use a different attorney to write the agreement?

I would use this guy if given the choice, I'm told he is a bulldog and is so professional he doesn't communicate by phone or email (it's not secure or private enough).

Thanks in advance, hope you're enjoying your holiday.

[socrateaser]

I'm not an expert on Ohio law, and I don't know to what "new" law you refer. However, from what you have posted, so far, I think you may be misunderstanding the legal authority created by a "Power of Attorney" (POA). So, what follows is the law of Agency 101:

A POA is a written and notarized "agency" agreement between a Principal ("P") and an agent ("A") which grants A authority to legally represent and bind P, without further consent, in any matter authorized by the POA document. In legal parlance, this it makes A, P's "Attorney in Fact."

In return for the grant of authority, A accepts a "fiduciary duty" to act loyally and faithfully to advance P's interests and objectives, as set forth in the POA, and to reasonably notify P as to all things concerning the agency. Under law, a "fiduciary" duty is a "special" relationship that permits P to gain greater relief in court against A, than would ordinarily be permitted were the relationship just "contractual," if A  acts in conflict with P's interests.

P, conversely, agrees to cooperate with A in the performance of the agency, and to compensate and indemnify A for any expenses reasonably incurred.

Example: If A has a POA authorizing him to obtain title to an apartment building for P, then A can enter into the sales agreement with a third party seller, draw the necessary funds from P's bank accounts, and sign the closing documents, all without P's signature (unless otherwise prohibited by law). And, this would include the authority to defend/advance P's interests in the property by legal action in court, if necessary.

So, for a step parent, a POA would likely grant A authority to act to advance P's interests in the minor child, i.e., food, shelter, clothing, health, education and welfare, and to advance/defend in court, on any legal matter that might arise, as long as the end result was done to advance P's objectives (which, we will assume to be maintaining as much custody and control over the minor child as possible -- and, of course, paying as little support as possible).

However, there is ONE grant of authority, that ironically, cannot be conveyed via a POA, and that is: No agent can PERSONALLY represent their principal before a court of law or equity. That power is specifically reserved to the other kind of attorney -- you know the one -- the "Attorney at Law."

After all, if courts allowed principals to authorize agents to represent them in court, then ANYONE could be a lawyer, by just obtaining a POA from their client granting them the authority to represent their client in court.

OK, now, for your questions:

>1. If this were the case, would this attorney be representing
>the parents, or me?

If you have your son and his girlfriend's power of attorney regarding their interests in the child, then the attorney would be representing you, as you faithfully and loyally advance your son and girlfriend's interests in the child -- indirectly, then, the attorney would also be representing both parent's interests.

>2. And if it's the former, this would mean I could not use him
>in the future for custody matters, correct?

If you intend to assert a personal interest in obtaining custody of the minor child from your son and his girlfriend, then, unless you could show that this was both of their wish, then you could find yourself someday, being sued by one, or both of them, for a breach of your fiduciary duty. Frankly, if you have POA, then I would be extremely leary of taking this path, because one might claim that you obtained the POA as a means of obtaining custody of the child for yourself, and that would be a pretty serious fraud, perhaps even a criminal fraud. So, if your objective is to get custody for yourself, then the first thing that you should do is renounce the POA -- otherwise, you are setting yourself up for possible problems in the future.

>
>3. Would this mean I should use a different attorney to write
>the agreement?

Well, frankly, if I were presented with your situation, I would refuse to represent you until you renounced the POA, because I would be setting myself up for later trouble. I'm fairly certain that the attorney you consulted hasn't considered the danger presented by this circumstance -- hasn't even crossed his mind. Well, I go by the old adage that "All's fair in love and war," and, I wouldn't touch your case with a ten foot zuccini.

If your goal is to obtain custody of the child, then you need to renounce the POA, first. After that, you are free to do as you wish, and with any attorney you choose.

[janM]

Here is the description:

§ 3109.52. Power of attorney granting grandparent with whom child resides authority over care, custody, and control of child.

   
 The parent, guardian, or custodian of a child may create a power of attorney that grants to a grandparent of the child with whom the child is residing any of the parent's, guardian's, or custodian's rights and responsibilities regarding the care, physical custody, and control of the child, including the ability to enroll the child in school, to obtain from the school district educational and behavioral information about the child, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child. The power of attorney may not grant authority to consent to the marriage or adoption of the child. The power of attorney does not affect the rights of the parent, guardian, or custodian of the child in any future proceeding concerning custody of the child or the allocation of parental rights and responsibilities for the care of the child and does not grant legal custody to the attorney in fact.  

   
 HISTORY: 150 v H 130, § 1, eff. 7-20-04.

I had them sign this because his school required it to prove physical residence (open enrollment) and because it is filed with the court. The school has a copy of Dad's custody papers as well. I also wanted it for signing for him at school or doctor etc.

I believe this POA is in effect until the child moves out, the parent cancels it, or me or the child dies. Otherwise it is good for a year, at which time if it needs to be renewed, a court hearing is held to determine if it's in the child's interest to continue it.

"unless you could show that this was both of their wish"
...that would be the best case senario, the one I was asking about. I hope sometime in the near future they will do this willingly. If they do, the lawyer said he would draw up an agreement.

FYI, here is a link to the act:
http://www.legislature.state.oh.us/bills.cfm?ID=125_HB_130

Thanks for the reply.
ps, mom is definitely his EX girlfriend LOL...
 

[socrateaser]

Wow, quite a law -- must have kept the legislative counsel busy for a fortnight. Anyway, I wouldn't take any action to independently obtain custody, until you have a written revocation of the POA from both parents -- otherwise, there's some gray area of this that could bite you later.

In my view, when you seek to obtain an agreement granting you custody, the attorney who reads that POA should recognize that you are supposed to be acting to protect the parents' and the child's interests. Knowing that fact, he is representing you to potentially act adversely to the parents' interests. The statute grants anyone relying on the POA immunity from prosecution for relying on the POA, but in this case, the attorney should reasonable know that he's potentially adverse to the interest of agent and principal, and I believe that a court would find that the attorney cannot blind himself to what he should know, and therefore hold the attorney liable -- right along with you.

This is a new law, that hasn't been litigated yet for any interpretation. Would you like to be the test case -- hope not, cause it will be quite costly.