Guardian living off nephew's ok?

'Is it true that guardianship is determined on several factors?' -particularly the financial circumstances of the guardian that the court should of not look favorably upon her ability to provide a sound home environment for your child? ...because the home was provided did that make it not matter?

Also what proof should the court see to say he was unwilling, unfit to care for them as well as provide for them?

Your question isn't really with that particular statement (which is true, by the way) but rather with what circumstances/factors the court took into consideration in one specific case.

Your use of the words 'living off' may be misleading. For example, after my husband was killed in a work accident my children began to receive social security survivors benefits. This money comes to me on their behalf and in turn I provide a house, food, clothing, medical care, etc. Technically, since I am living in the house, I am 'living off' the money I receive on their behalf. What am I supposed to do--purchase a separate house in which they are to live and a separate vehicle, etc? Benefitting unfairly is not the same as the actual meaning of "living off".

The point is if a person is a full time care giver, by putting a roof over the needy persons head they are also, by default living there, I am not certain that counts as 'living off' them. Now, if they are neglected and she is driving a new luxury car, you may have a point. But by paying for a house that they BOTH live in? That isn't 'living off' them in that context.

Additionally as both a recepient of benefits for my children and on their behalf, and as a mother of a completely disabled child, I must give an accounting yearly. I must keep records of where the money went that I spent and I must submit that yearly or else their benefits stop. If she is providing this accounting to the appropriate party and to their satisfaction, what anyone else thinks about it really isn't relevant.

Did the court follow proper procedure in the case you mention? I have no way to know that. Is she taking advantage of their funds and misuing them? Apparently you feel so--and you may be right. Again, I do not know. However, I do know that simply because she receives benefits on their behalf and uses it to pay for housing(for example) that they both share does not mean she is misuing the funds.

Hire a lawyer and appeal the custody if you feel you would like to be the guardian of these folks.

I have a question though in your case are you not supplying no income of your own into this house?

Would YOU do it for any amount of money?How much would it take for you to be willing to step up to the plate and parent these special needs folks?

The answer to your question is in situations like mine, the death benefit as a widow with children is divided evenly among the children and me. However, the amount of each check is very small---not enough in and of itself to pay any bill. However together, it supports us as a unit.

I still don't understand what it is you want this woman to do. She cannot have a job if she is full time caretaking. Please note I am making a distinction between daily needs (electricity, clothing, food, shelter) and things such as vacations, luxury cars, etc. Their money they receive is supporting THEM. The fact that the person taking care of them LIVES WITH THEM does not mean she is benefitting FROM THEM in an inappropriate fashion.

I am speaking generally----I do not know if, in your case, the person is doing something untoward or inappropriate. I am merely saying the fact that in the process of caring FOR them she cares for herself (she eats when they eat, uses the hot water to bathe, has a roof over her head in the course of her duties) I don't understand the problem you have.

For a short period afer getting married, my husband and I filled in on the weekends for the house parents at a children's home. Another couple was there twenty four hours a day, seven days a week and part of their pay was the fact they had 'free' room and board. Of course, it wasn't really free---it was part of their compensation. That is generally how a caretaker is paid.

I am not certain I understand what it is you want her to do. You find it reprehensible that she is being compensated by a roof over her head and food on the table in the course of her caring for them?

I am not sure I understand the problem.

Beacuse I repeated myself here I remove it

I see no need to repeat myself when clearly you are seeking affirmation, not legal advice.
I would only suggest further that if perhaps the energy you put into focusing on this woman and how you think she is sitting in the lap of luxury for being guardian to special needs people could be channeled into figuring out and addressing why the children's biological father lost custody of them in the first place, this discussion may not have been for naught.

GentleGrace has already give you some good answers on this thread. Perhaps this will help also. It seems to me that there are three issues here, which are related but need to be analyzed separately.

FIRST ISSUE. Can anything be done about the award of custody?

Custody disputes mostly involve fact finding by a judge as to what is in the best interests of the child. Whoever is deciding the facts of a case, be it judge or jury, is generally free to accept or reject the evidence of one side of the dispute or the other, or take a position in between. Further, even though this is 2009, as a practical matter there is still at least an unwritten bias in favor of having a woman as the primary caregiver for a child. I am not saying that bias is appropriate. I am just observing that it exists.

Your complaint about custody seems to be that the court accepted the former spouse’s position and pretty much rejected the father’s. That is a function of having a trial of a factual dispute. Every time there is a trial there is a winner and a loser and the loser often feels like she or he was treated unfairly and that the result was wrong.

What you need to come to terms with in order to live with this is to understand this: Since the court awarded custody to one party, rightly or wrongly, it is going to stay that way absent a timely appeal to a higher court or a change of circumstances.

I have the impression from your posts that the custody decree was handed down at least some months ago. If so, it is probably too late for an appeal, although you would have to check with a lawyer in the state where this happened to be certain. Even if an appeal had been timely brought, however, it is very difficult to set aside a finding of fact on appeal if there was any - and I mean “any” - evidence in the trial court to support the finding. Basically, the system is designed to impose a final result in a legal dispute. Courts don’t like to have the same issues tried twice unless serious legal errors occurred.

If new facts or evidence demonstrating that the woman who was awarded custody is not a fit parent for the children then there might be grounds to go into court and change custody. However, this is usually very difficult to do. I have not seen anything in the facts which you have posted which suggests that she is an unfit caregiver for the children.

SECOND ISSUE. Is there anything wrong with a full time caregiver paying from the children's income the expenses of maintaining a household in which the caregiver and the special needs children live?

I have had personal experience with this identical issue as an attorney. I represented the trustees of a trust established to benefit a deceased woman’s two children. At the time of her death, she had been divorced from the child’s father. As the surviving natural parent, he obtained custody. The trustee was concerned about exactly the kind of issues you discuss. However, in that case the court ruled that it was perfectly reasonable for the custodial parent to use the child’s income from the trust to help pay for the normal living expenses of the family.

I think that the experience I just mentioned, and GentleGrace’s own recount on this same issue, reflect the prevailing view, both in society as a whole and in the courts. In the situation you describe, where there are three special needs children to be take care of, most judges - practically all, I believe - would find it appropriate for the children’s income to be used for living expenses. This would include house payments unless the payments were above the amount of reasonable rent. Whether the woman who has custody has other income or not - or if she even has time to work while raising three special needs children - is almost beside the point. As long as the money is spent on legitimate expenses related to the care of the children, that is all that really matters.

Of course specific expenses could be improper and a grounds for a legal challenge. However, I do not see any real suggestion of that in your posts.

THIRD ISSUE. It appears that there is a separate trust implicated. I do not know the terms of that trust. Depending on what it says, there could be a legitimate issue as to whether income from the Trust is being properly applied. For example, if the trust says the income can only be used for education, it would be improper for funds to be used for clothing, shelter, food, or other purposes. Primarily, it is up to the trustee of the trust to police that, although perhaps the father could as well. If there is a concern about trust funds being improperly spent - and I have no facts suggesting that there really is such an issue - then that should first be addressed to the trustee.

I hope that this helps you understand the issues. Not to be unsympathetic to your views, but generally it sounds like the situation you describe is one you must learn to accept as “the way things are” rather than to add to your stress by wishing things had worked out otherwise.

You have the ability to be more methodical than do I.

Excellent information, so well written.

Thank you.

Removed also for it was to long

I need to say her motives for taking care of these children were not pure. So I was trying point out that out with my first post to begin with I guess.......

She only did it so she could have a free ride because at one time this woman was very willing to move out to let us raise them, but in a matter of a couple of days she changed her mind once she found out that she would lose the payment from the trust as a caregiver for she thought she cold have both with a disability check that she was going to apply for too, after talking to my husband divorce lawyer without his consent he advised her to not move out....So is that ok?

With that motive in mind along with the fact she is very obese, has several health issues, has a history of mental illness, and she has been in the hospital several times over the last few years. She has outsiders helping her to a maid cleaning the house because she is not physically able too. She lacks in being able to give proper structure as well to her alienating the children all right?