Q. My Niece has a 1 yr old son. She is always gone on drugs and alcohol. Her mother cares for him 24/7, takes him to doctors ... the boy's mother doesn't seem to care for him. My sister needs to get custody of her grandchild ASAP. He is in a loving home, has the care he needs. What should I tell her to do?
Sheila, Moreno Valley, CA
There is only one choice in the absence of a pending paternity or other proceeding between the niece and the father: A guardianship proceeding. The niece's mother has no standing to file any other type of action; however, if another action is pending (again, a dissolution or a paternity action between the bio-parents, for instance) your sister can seek custody pursuant to Family Code section 3041, which deals with custody to nonparents such as grandparents, by applying to be joined into those proceedings. Your sister in that case would be presumed to be the more appropriate custodian of the boy IF she can establish a stable placement exists with her and that she has "assumed, on a day-to-day basis, the role of his ... parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."
The last portion is critical. If the child's mother gets her act together, or pretends to, its a bit close whether a one year period will satisfy a judge (has the situation been the same since birth?). Also, I would want to know whether the child's mother lives in your sister's house or has just parked the child there. If the former, it will be tougher.
If your sister is in control now and the child is protected, she should consult an attorney immediately so that she makes the right moves in case the time comes for her to take action. Consulting a qualified custody lawyer for advice now is a smart move.
Please see this link to nonparent custody issues. Custody of grandchildren is a specialized family law practice area.