Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“In the spirit of providing enough information, I hope that I don’t give too much. I am a 33-year-old homeowner in Oklahoma. My girlfriend and I have been together for four years and plan to get married when she finishes her RN program at a local university. She does not live with me.
I have a situation with my 15-year-old sister, who lives in Tennessee. My sister’s mother gave up her parental rights three years ago to our father, she is an unfit mother with serious drug dependencies. No one in the family has seen or heard from her since. Last year our father was diagnosed with small cell cancer in the lungs and brain, he sent my sister to live with our aunt (father’s sister) in Tennessee. He passed away in December last year and my sister has been with our aunt and uncle ever since. I know that they do not want her. After my father’s funeral they checked into turning her over to foster care! I believe in my heart that the only reason they tolerate her is that my sister receives survivor benefits from the VA and SSA. (Our father’s death was attributed to pesticide exposure during the Vietnam War.) She is not happy there and I do not agree with some of the things that go on in that home. I know that there is illegal drug use, and possibly street level trafficking taking place. Both of which would be hard to prove, I know. From stories I hear from my sister there is mild verbal abuse, but nothing physical.
My sister has asked me if she could come live here. She doesn’t want to be there, and given what I know of that environment I don’t want her there either. As her eldest sibling, I feel a great responsibility to her welfare. There is a possibility that if I express this to my aunt, she’ll willingly turn her over to me. If she does not respond well to my request, I want to be as prepared as I can be for any legal action that I might be able to take.
My question is this: Do I have grounds to contest custody of my sister? If I do, can anyone offer me advice as to how best to prepare, what to expect from a court hearing, and where to start? If it comes to a fight with my aunt, I want to be prepared to move quickly. As of right now, I do not think she is aware of my sister’s request to come here and I have encourage my sister not to speak of it. Any advice would be appreciated!”In California, your sister is old enough to be an emancipated minor. At that point she could start calling some of her own shots about where and with whom she is living. Tennessee’s emancipation laws are not so clear cut though. Tennessee Jurisprudence under Parent and Child S 18, reads as follows: S 18. Generally.-Emancipation may result from an agreement, or it may occur by operation of law, and generally the emancipation of a child leaves the child, as far as the parent is concerned, free to act on the child’s own responsibility and in accordance with his own will and pleasure, with the same independence as though he had attained majority. Emancipation of a child may be express, as by voluntary agreement of the parent and child, or implied from such acts and conduct as import consent, and it may be conditional or absolute, complete or partial. The leading case seems to be Morgan v. Morgan, 1988 Tenn. App. Lexis 792 (1988).
Question: You also could look into adoption of yor sister. But better yet communicate with aunt and uncle before deciding whether you need to bring this to the Courts see if they mind whether you sister moves to your house. It does not sound like they have a strong legal claim to custody, anyway, so I’m not sure how much of a fight your aunt will be able to give you over your sister’s wishes. I would suggest to try talking it out first before filing anything under the facts you describe.
