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Becca_H
03-14-2011, 06:17 PM
Let's say you have a nineteen-year-old brother (apartment, job, self-sufficient) and a seventeen-year-old sister (high school, lives with parents, no income).

If both parents die suddenly, what would happen to the girl?

I have a story where she needs to go and live with her brother, who can support her financially. But I'm wondering if it would really be as simple as this? Would Child Services get involved? Would she be placed with a foster family short-term? Would he need to petition for custody? Is it difficult? Time-consuming?

This story is based in California. Any help would be greatly appreciated.

BySharonNelson
03-14-2011, 07:11 PM
In all likelihood she would go to the brother. If there were another family member that made a fuss about it child services may get involved but it would just be to make sure that the brother is a fit guardian. They would probably just do a couple of home visits. Other relatives could also petition the court for custody in which case the brother would have to show that he can care for her and I don't know about anywhere else but when a child is above the age of 13 the judge will simply ask the child where they want to live and in most cases, listen. So really sense its your story you can decide how much complication you want. It would not be unrealistic for her to just move in with her brother.

Debbie V
03-14-2011, 09:47 PM
If the parents have left a will, it could specify another guardian. But that would be your only obstacle unless the brother didn't want her. He's next of kin.

Chris P
03-14-2011, 09:51 PM
I can't imagine any court sending the 17 yo into foster care, unless the brother was deemed unsuitable, such as by having drug convictions, etc. In some places a 17 yo is legally able to rent an apartment on his/her own.

PinkAmy
03-14-2011, 10:10 PM
It would depend. If she were to go with the brother, the brother would have to prove that he has the ability to provide for her financially and emotionally, even though there is just a two year difference. If there is an aunt, uncle or grandparent, custody would likely go to one of them. 19-year-olds aren't granted custody unless they are able to prove they can take care of themselves. Once the parents have died, she is legally a ward of the state. She would be a hard to place foster child, so she might end up in a group home if there are no relatives. If the brother is in school and doesn't have an income to support himself, let alone his sister, she would go to a group home. A friend's parents might take her in, because she'd probably want to stay in the same school since everything in her life has just changed and if she would prefer the friend's home to a relative, her wishes would probably be respected if she's a "good kid" (not a problem child or known to the courts). If the friend's parents want to take her in, they would need to be certified as foster parents, but she could probably live there while they are going through certification because of her age.

Becca_H
03-15-2011, 06:56 PM
Excellent - thanks for all your replies.

I need her to have a relatively smooth transition, and it seems this should be possible. I was just worried that doing this may be inaccurate compared to real life.

WriteKnight
03-15-2011, 08:47 PM
California Family Code Section 3011 states,

3011.In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following:

(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, "abuse against a child" means "child abuse" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means "abuse" as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, "controlled substances" has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323. (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

California Child Custody Laws: Health, Safety, and Welfare of the Child
Under the best interest of the child standard the "health, safety, and welfare" of the child is a relevant factor the family court must consider in making a child determination on child custody and visitation.

PinkAmy
03-15-2011, 09:20 PM
Unfortunately, write knight, legal statutes and what happens practically don't always mesh. There is a lot of subjectivity when determining child welfare issues.

Becca- if you want the girl to have a smooth transition into her brother's custody have the parents leave the kids housing and a substantial amount of money in life insurance or in assets so that money is not an issue. Have the brother be a paragon of virtue with a lot of social support in the community and with family. He can't have been in any trouble, nor can the girl. Have the girl be closer to 18 than to 16, consider having her as a young college student rather than an older HS senior. Have the girl also be responsible. She might be able to become an emancipated minor if she's a good kid and her parents have left her enough money to take care of herself.

Becca_H
03-16-2011, 12:12 AM
The brother is on a salary circa 33,000 US Dollars in a respectable and stable job. They're both squeaky clean.

How would this stand?

Reason being is it would sort of break my story if I implement your suggestions. It's essential she's a HS senior, without any money of her own, and not emancipated. She really needs to be dependant on his emotional and financial support for their relationship to work as planned.

Chris P
03-16-2011, 12:24 AM
Reason being is it would sort of break my story if I implement your suggestions. It's essential she's a HS senior, without any money of her own, and not emancipated. She really needs to be dependant on his emotional and financial support for their relationship to work as planned.

I think this is something you could fudge without too many people calling foul. You could probably get away with simply saying she's going to live with her brother until she finishes high school. I doubt any further explanation would be necessary.

PinkAmy
03-16-2011, 01:42 AM
The brother is on a salary circa 33,000 US Dollars in a respectable and stable job. They're both squeaky clean.

How would this stand?

Reason being is it would sort of break my story if I implement your suggestions. It's essential she's a HS senior, without any money of her own, and not emancipated. She really needs to be dependant on his emotional and financial support for their relationship to work as planned.

$33k for a nineteen year old who's not finished college--- nice, LOL.

Child welfare agencies aren't going to expect a 19 year old brother to be able to provide emotional support in they way family should. If she had emotional problems (substance abuse, psychiatric, truancy) before her parents deaths, her brother probably wouldn't get custody because it's too much to expect a 19yo to provide enough emotional support to a disturbed teenager. If she had emotional problems she'd probably go to a therapeutic foster home. The only way she'd go to her brother if she had emotional problems would be if she had been in therapy and the therapist recommends her brother getting custody-- he would have to be a very unique 19 year old.
If the brother gets custody, it wouldn't be permanent custody, a child services worker would check on the siblings to make sure the girl was getting what she needs. In the beginning it's supposed to be weekly or biweekly, but with caseloads as high as they are, it might be monthly unless the worker is a total disaster and somehow never comes and forges documents.

jclarkdawe
03-16-2011, 04:10 AM
I need her to have a relatively smooth transition, and it seems this should be possible. I was just worried that doing this may be inaccurate compared to real life.

The only way this would go smoothly is if the parents have wills and their preference in the will is for the son to have custody. But it would be very unusual for parents to go into an attorney right after the boy turns eighteen and change their wills. Possible, but unlikely.

However, if one of the parents died in an accident, but the other survived for a few days in the hospital, it becomes very probable. Surviving parent, especially if they know their probable fate, is going to want to make sure their daughter is taken care of. Especially if they had a will already, adding a codicil to it for custody is easily done.

As an attorney, I'd videotape the parent stating how and why they think their son should take care of their daughter. If there was enough money, I'd hire a guardian ad litum who is respected in divorce cases to investigate the son's appropriateness. I'd also see of having the daughter see a psychiatrist. That should be more than enough for a probate judge.

Another approach that could work if there is no family around to interfere. Starting point for this is who do you have to deal with in this situation. The answer is the school, the court, and social services. The second part of this is the shorter you have to do it, the more likely it is to succeed.

Social services does not automatically get notified in parents' deaths. If social services doesn't know about the situation, they have nothing to deal with. So the question is who's going to report this to them? Hospitals don't do this as a matter of course. If there are no problems, it's very possible social services will never become aware of the situation.

Courts would become aware of the situation if an estate is filed. But there is no requirement that the parents' estate be filed immediately.

Biggest problem is the school. But if Aunt Edith were to show up to provide the grownup, teachers won't think anything about it. The fact that Aunt Edith doesn't actually exist is only a minor problem. For a few months you can stall a school and in many places, even longer.

Nothing goes wrong, and they could probably pull this off for quite a few months. And the longer it goes on, the more people would accept it.

Best of luck,

Jim Clark-Dawe

WriteKnight
03-16-2011, 11:08 PM
The pertinent information in California Law - how the court makes it's determination is first and foremost for the 'Health Safety and Welfare of the Child'.

IF there are no other relations - no aunts or uncles or such that are seeking custody of the girl - and the brother is as you say 'squeaky clean' and on his own. I can easily see the court remanding her to him for custody.

I know of a similar case in fact.

WHERE in California do they live? This can have a bearing.

WHAT does the nineteen year old do for a living? Is he a barkeeper?

33k is easily done in the tech industry. Think in terms of a gifted tech-head, a web designer, game coder, IT tech, something like that - then yeah, he can pull down 33k a year. BUT - in the San Francisco Bay area - that's barely a living wage. (Check the rent sometime.)

PinkAmy
03-17-2011, 03:38 PM
Social services does not automatically get notified in parents' deaths. If social services doesn't know about the situation, they have nothing to deal with. So the question is who's going to report this to them? Hospitals don't do this as a matter of course. If there are no problems, it's very possible social services will never become aware of the situation

Police (if the parents died in an accident), the school, friends' parents, hospitals, doctors, neighbors, other family members, any mandated reporter. Anything as simple as the girl going to the doctor and no longer having health insurance because her parents are no longer living is going to remind adults that the girl no longer has parents.
If she and her brother were actively trying to hide the living situation, that could make detection harder and maybe even impossible if they were good enough at it.


The pertinent information in California Law - how the court makes it's determination is first and foremost for the 'Health Safety and Welfare of the Child'.



I wish child welfare agencies were able to work the way the statute reads. The sad part is that this is the law, but reality doesn't always match the ideal or what's done in practice because there isn't always suitable placement available. Generally, keeping siblings together is in their best interest, but if they are three minority teenage boys with special needs (school issues, behavior, mental health, disability), chances are there won't be an open foster home to take those boys. The "good" foster homes are grabbed up first, and there's often a waiting list for therapeutic foster parents. Teenage boys are hard to place, so you might have a perfectly fine young man sent to a group home because there aren't any families open.