Can I keep my grandson and not return him to his mother since she has neglected him?
10/30/2007 - Guardianship - State: TX #11260
Full Question:
My grandson is with us now visiting. We are expected to return him to his home this week. His mother has been reported to CPS on several occations and now our family doctor has gotten involved and also reported her to CPS for not seeking medical care for him due to an illness. His mother has also threatened my son saying that she would take the baby to Mexico and leave him there with her extended family if we ever sought to gain custody. That is what we are trying to do now that we have the support of a medical doctor. Can we keep him with us and not return him? We are concerned that he will not get the medical attention he needs and for the threats she has made about taking him to Mexico.
Answer:
The following is a Texas statute:
§ 875 PROB. CODE. Temporary Guardian — Procedure
(a) If a court is presented with substantial evidence that a person may be a minor or other incapacitated person, and the court has probable cause to believe that the person or person's estate, or both, requires the immediate appointment of a guardian, the court shall appoint a temporary guardian with limited powers as the circumstances of the case require.
(b) The person retains all rights and powers that are not specifically granted to the person's temporary guardian by court order.
(c) A sworn, written application for the appointment of a temporary guardian shall be filed before the court appoints, a temporary guardian. The application must state:
(1) the name and address of the person who is the subject of the guardianship proceeding;
(2) the danger to the person or property alleged to be imminent;
(3) the type of appointment and the particular protection and assistance being requested;
(4) the facts and reasons supporting the allegations and requests;
(5) the name, address, and qualification of the proposed temporary guardian;
(6) the name, address, and interest of the applicant; and
(7) if applicable, that the proposed temporary guardian is a private professional guardian who is certified under Subchapter C, Chapter 111, Government Code, and has complied with the requirements of Section 697 of this code.
(d) On the filing of an application for temporary guardianship, the court shall appoint an attorney to represent the proposed ward in all guardianship proceedings in which independent counsel has not been retained by or on behalf of the proposed ward.
(e) On the filing of an application for temporary guardianship, the clerk shall issue notice that shall be served on the respondent, the respondent's appointed attorney, and the proposed temporary guardian named in the application, if that person is not the applicant. The notice must describe the rights of the parties and the date, time, place, purpose, and possible consequences of a hearing on the application. A copy of the application must be attached to the notice.
(f)(1) A hearing shall be held not later than the 10th day after the date of the filing of the application for temporary guardianship unless the hearing date is postponed as provided by Subdivision (2) of this subsection. At a hearing under this section, the respondent has the right to:
(A) receive prior notice;
(B) have representation by counsel;
(C) be present;
(D) present evidence and confront and cross-examine witnesses; and
(E) a closed hearing if requested by the respondent or the respondent's attorney.
(2) The respondent or the respondent's attorney may consent to postpone the hearing on the application for temporary guardianship for a period not to exceed 30 days after the date of the filing of the application.
(3) Every application for temporary guardianship takes precedence over all matters except older matters of the same character.
(4) Immediately after an application for temporary guardianship is filed, the court shall issue an order that sets a certain date for hearing on the application for temporary guardianship.
(5) On one day's notice to the party who filed the application for temporary guardianship, the respondent or the respondent's attorney may appear and move for the dismissal of the application for temporary guardianship. If a motion is made for dismissal of the application for temporary guardianship, the court shall hear and determine the motion as expeditiously as the ends of justice require.
(6) If the applicant is not the proposed temporary guardian, a temporary guardianship may not be granted before a hearing on the application required by Subdivision (1) of this subsection unless the proposed temporary guardian appears in court.
(g) If at the conclusion of the hearing required by Subsection (f)(1) of this section the court determines that the applicant has established that there is substantial evidence that the person is a minor or other incapacitated person, that there is imminent danger that the physical health or safety of the respondent will be seriously impaired, or that the respondent's estate will be seriously damaged or dissipated unless immediate action is taken, the court shall appoint a temporary guardian by written order. The court shall assign to the temporary guardian only those powers and duties that are necessary to protect the respondent against the imminent danger shown. The court shall set bond according to Subpart B, Part 3, of this chapter. The reasons for the temporary guardianship and the powers and duties of the temporary guardian must be described in the order of appointment.
(h) Except as provided by Subsection (k) of this section, a temporary guardianship may not remain in effect for more than 60 days.
(i) If the court appoints a temporary guardian after the hearing required by Subsection (f)(1) of this section, all court costs, including attorney's fees, may be assessed as provided in Section 665A, 665B, or 669 of this code.
(j) The court may not customarily or ordinarily appoint the Department of Aging and Disability Services as a temporary guardian under this section. The appointment of the department as a temporary guardian under this section should be made only as a last resort.
(k) If an application for a temporary guardianship, for the conversion of a temporary guardianship to a permanent guardianship, or for a permanent guardianship is challenged or contested, the court, on the court's own motion or on the motion of any interested party, may appoint a new temporary guardian or grant a temporary restraining order under Rule 680, Texas Rules of Civil Procedure, or both, without issuing additional citation if the court finds that the appointment or the issuance of the order is necessary to protect the proposed ward or the proposed ward's estate.
(l) A temporary guardian appointed under Subsection (k) of this section must qualify in the same form and manner required of a guardian under this code. The term of the temporary guardian expires at the conclusion of the hearing challenging or contesting the application or on the date a permanent guardian the court appoints for the proposed ward qualifies to serve as the ward's guardian.
§ 676 PROB. CODE. Guardians of Minors
(a) Except as provided by Section 680 of this code, the selection of a guardian for a minor is governed by this section.
(b) If the parents live together, both parents are the natural guardians of the person of the minor children by the marriage, and one of the parents is entitled to be appointed guardian of the children's estates. If the parents disagree as to which parent should be appointed, the court shall make the appointment on the basis of which parent is better qualified to serve in that capacity. If one parent is dead, the survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their estates. The rights of parents who do not live together are equal, and the guardianship of their minor children shall be assigned to one or the other, considering only the best interests of the children.
(c) In appointing a guardian for a minor orphan:
(1) if the last surviving parent did not appoint a guardian, the nearest ascendant in the direct line of the minor is entitled to guardianship of both the person and the estate of the minor;
(2) if more than one ascendant exists in the same degree in the direct line, one ascendant shall be appointed, according to circumstances and considering the best interests of the minor;
(3) if the minor has no ascendant in the direct line, the nearest of kin shall be appointed, and if there are two or more persons in the same degree of kinship, one shall be appointed, according to circumstances and considering the best interests of the minor; and
(4) if no relative of the minor is eligible to be guardian, or if no eligible person applies to be guardian, the court shall appoint a qualified person as guardian.
(d) Notwithstanding Subsection (b) of this section and Section 690 of this code, the surviving parent of a minor may by will or written declaration appoint any eligible person to be guardian of the person of the parent's minor children after the death of the parent or in the event of the parent's incapacity.
(e) After the death of the surviving parent of a minor or if the court finds the surviving parent is an incapacitated person, as appropriate, the court shall appoint the person designated in the will or declaration to serve as guardian of the person of the parent's minor children in preference to those otherwise entitled to serve as guardian under this chapter unless the court finds that the designated guardian is disqualified, is dead, refuses to serve, or would not serve the best interests of the minor children.
(f) On compliance with this chapter, an eligible person is also entitled to be appointed guardian of the children's estates after the death of the parent or in the event of the parent's incapacity.
(g) The powers of a person appointed to serve as the designated guardian of the person or estate, or both, of a minor child solely because of the incapacity of the minor's surviving parent and in accordance with this section and Section 677A of this code terminate when a probate court enters an order finding that the surviving parent is no longer an incapacitated person.
§ 681 PROB. CODE. Persons Disqualified to Serve as Guardians
A person may not be appointed guardian if the person is:
(1) a minor;
(2) a person whose conduct is notoriously bad;
(3) an incapacitated person;
(4) a person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward, unless the court:
(A) determines that the lawsuit claim of the person who has applied to be appointed guardian is not in conflict with the lawsuit claim of the proposed ward; or
(B) appoints a guardian ad litem to represent the interests of the proposed ward throughout the litigation of the ward's lawsuit claim;
(5) a person indebted to the proposed ward unless the person pays the debt before appointment;
(6) a person asserting a claim adverse to the proposed ward or the proposed ward's property, real or personal;
(7) a person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward's estate;
(8) a person, institution, or corporation found unsuitable by the court;
(9) a person disqualified in a declaration made under Section 679 of this code; or
(10) a nonresident person who has not filed with the court the name of a resident agent to accept service of process in all actions or proceedings relating to the guardianship.
Please also see the information at the following link:
http://lawdigest.uslegal.com/family-laws/guardianship/7345/
10/30/2007 - Category: Guardianship - State: TX #11260
See more Questions in the Guardianship Category
