New York Probate and Estate Administration Lawyer Blog
Probate Lawyers said that according to sources, a convicted felon who is unrelated to two subject children has filed for guardianship of these children who presently reside with him and his wife. The maternal uncle and adopted brother of the children has cross-petitioned for guardianship of the two subject children and opposed the petition of the said felon.
The court ruled that in a guardianship/custody dispute between two parents, the court is bound to make its determination based solely upon what is in the best interests of the children. The Court of Appeals firmly established a “totality of the circumstances” approach to all custody determinations, indicating that no one factor should be determinative in deciding what is in the best interests of the child. Even though this case does not involve two parents, the totality of the circumstances analysis is appropriate herein.
A New York Estate Lawyer said that under the totality of the circumstances rule no one factor is determinative in making an award of custody. Determining what is in the child’s best interest requires that consideration be given to many factors such as: the relative stability of respective parents, the wishes of a child, the effect of separation of siblings, the length of time the present custody arrangement has continued, the care and affection shown to the child by the parents, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the atmosphere in the homes, the morality of the parents, the financial standing of the parents, the refusal of a parent to permit visitation and or the willingness of a parent to encourage visitation and the overall relative fitness of the parties. The existence or absence of any one factor cannot be determinative since the court must consider the totality of the circumstances. In the end, any determination of child custody must be based upon what is for the best interest of the child and what will best promote its welfare and happiness. Even in a guardianship proceeding, the same best interest test must apply for the benefit and welfare of these children. Neither party is a parent. Although the respondent is a blood relative, there is no prima facie preference for a blood relative over a person who is not related to the child.
Nassau County Probate Lawyers said that the court found the maternal uncle to lack credibility. The uncle’s demeanor was dishonest, circumspect, self-serving and at times arrogant. The court credits the testimony of the felon and his wife. The evidence has demonstrated the excellent job of parenting the felon and his wife have done since the subject children have been in his care since March of 1998. The felon has provided a loving, stable environment for both children. He and his wife have brought stability to the lives of these children in a time of bereavement and emotional turmoil. Blood tests revealed that the felon was not the biological father of one of the children even though he and the child truly believed he was her father. The court directed that neither party was permitted to inform the child of the results of the blood tests pending trial. Although the felon learned he was not the father, he did not consider withdrawing his petition because he loves both children and wants them to live with him regardless of the lack of a blood relationship. The children refer to him as their father and to his wife as their stepmother.
A Staten Island Probate Lawyer said that the evidence shows that the felon has been involved with the uncle’s family for twenty-five years because he had a periodic relationship with the mother of the children for twenty-five years. The family assumed that he was one of the child’s father. Although the natural mother’s rights to these children were terminated years before, she still was involved in their lives. The natural mother along with others, aided in the care of the subject children when the maternal grandmother/adopted mother became ill. The uncle went to the felon’s place of employment in early 1998 to ask whether he could care for the subject children because no one else wanted to take care of the children and the uncle was unable to care for them because of his lifestyle. Conveniently and without credibility the uncle disputes this. Following the death of the natural mother, the felon and the uncle had a second conversation regarding the children, and both children then came to live with the felon and his wife. The uncle was too overwhelmed with his own problems to assume responsibility for his nieces at the time of the maternal grandmother’s death. The uncle did not provide daily supervision of these children. Other friends and relatives were taking the children to school, preparing their meals and attending to their material needs. After the children came to live with the felon, the uncle did not provide the felon with financial support, clothing or gifts for the children. In September 1998, the felon applied for medicaid for both children and learned that the uncle was receiving and converting social security funds for the children since April 1998. After reporting this situation to this court, the court issued an order directing the funds to the felon and he began receiving the money for the children. The felon testified that he gives the children half of the sums each month for their own spending and saves the remainder in bank accounts for the children. He informed the court that there is a trust fund in the child’s name that was established pursuant to a settlement of a personal injury claim.
The applicant’s criminal record in this case was repeatedly and emphatically addressed by the uncle throughout the hearing. The felon was released from prison on parole status in April 1997 and has never violated his parole. He was first imprisoned in 1981 for possessing a firearm and he served a year for this crime. Between 1983 and 1987, he was arrested several times for pickpocketing. He served one prison term lasting twenty-two months for pickpocketing and another lasted five years and eight months. The longest sentence he received was seven to fourteen years for robbery. In 1994, he violated work release and was returned to prison. Since April 1997, he has complied with the conditions of parole including maintaining employment, remaining drug-free, supporting his dependents and avoiding trouble with the law. The petitioner did not attempt to deny his record, minimize it or excuse it in any way. He testified credibly that since his release from prison in April 1997, he has faithfully obeyed all the conditions of his parole. Today, he is a law abiding, drug-free, gainfully employed citizen who is supporting his wife and the subject children. He has observed the conditions of his parole for a continuous period of over two years. All the evidence established that he has paid his debt to society for his past misdeeds, has renounced his past lifestyle and now is wholly devoted to the responsibilities of his job, his family and the two subject children he regards as his daughters. At this juncture, he is a viable alternative to the uncle and to foster care.
Moreover, there is nothing in this record to suggest that the felon has been involved in any criminal activity or unsavory behavior since his release from prison. He has acted appropriately in dealing with both children and there is no indication of an inappropriate behavior towards the children that was abusive, neglectful or even questionable. None of the offenses committed by him involved crimes against children. Clearly, he has established his fitness as a parent now. This court is not, in any way, minimizing the convictions of the felon. However, this court believes that he is at present, fit to act as the guardian for the children. This court believes that he loves the children and that he has proven that he and his wife can more than adequately care for these children. There is absolutely no evidence in this record which indicates that his past criminal history has had an adverse effect upon the children. The evidence indicates that the children are progressing, are happy, contented and well cared for. On the other hand, the uncle’s past performance as revealed in the record affords little hope the he could provide a warm atmosphere, stability, the love and security these children now enjoy.
In sharp contrast to the excellent job of parenting the felon has done, the uncle rests on his biological and legal relationship as the source for his supposed qualification for guardianship. The uncle never had daily responsibility of the children. The children never lived with him or his wife. Although he vaguely represented that he was involved in their rearing and schooling, the uncle could not name a single teacher or friend of the children. The uncle did not provide the children with food, clothing or shelter from his own pocket. On the contrary, the uncle jeopardized and squandered the children’s assets and diverted their funds for his own purposes. The uncle’s handling of his niece’s financial affairs is deplorable and is alone sufficient to disqualify him as an appropriate guardian. The uncle signed his name to adoption subsidy checks received on behalf of the children and kept the money for himself. The uncle collected social security funds totaling thousands of dollars on behalf of the children and kept the money for himself. He defrauded the Social Security Administration by failing to reveal that he was not the children’s guardian and he cheated the felon by failing to inform him of his entitlement to those monies. Most reprehensibly, the uncle kept all the money for himself and did not even purchase any necessities or gifts for his nieces. The uncle never told the Social Security Administration that the felon was the temporary guardian or did he tell the felon as temporary guardian he was collecting social security funds for the children. The uncle’s misappropriation of these funds ceased only when this court ordered the funds to go to the felon. The uncle had not made a single mortgage payment on the home where the subject children had lived for many years and now foreclosure proceedings are pending. He collected the children’s money and allowed their home which they have a beneficial interest in to lapse into foreclosure. No probate or estate administration proceedings was instituted. The respondent made no serious effort to prepare the house for their return. The uncle admitted not seeing them at all between May and July 1998. It was only after the felon filed for guardianship did he himself seek guardianship. He admitted to the court had the felon not filed, he would have not filed.
Taking the testimony and documentary evidence as a whole, the uncle’s principal motivation for the filing of the guardianship petitions is obvious, that he wanted control of his nieces’ money once he understood the children’s intestate rights to the home. He argues that he is the fit and stable guardian for the children based on the fact that he is a good role model with good morals and values and a strong work ethic because he has been gainfully employed all of his adult life; that he works as a bus driver for the Transit Authority; that he has no criminal history; and that he has a loving home surrounded by family members. The evidence shows this in fact is not the case. The uncle’s declaration that he would not allow the children to have contact with the felon if he were awarded guardianship demonstrates that the uncle’s principal motivation is revenge and financial gain, not the stability and emotional well being of the subject children. Therefore, the cross petitions for guardianship filed by the uncle are hereby dismissed. Once the uncle agrees to stop his campaign to discredit the felon, the court would consider the resumption of visitation with the children. The guardians are directed to immediately take steps to protect the financial affairs of the children.
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