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.
“My mother would like to obtain custody of my deceased sister’s daughter. The father has not been present in my niece’s life for no more than 4 months total (which was right after my sister passed) and she’s now approaching 16. We do not know his whereabouts and have no way of contacting him. My mother has been her primary caregiver since my sister’s death. However, she has no documentation showing that she is my niece’s legal guardian and often run into problems (i.e., school, medical, etc.). My question is, “is it possible for my mother to obtain custody or some form of legal guardianship without involving the father?” If possible, by what means?”
Question: Most states require parental consent to adoption or guardianship. Most states also have an abandonement exception to the consent requirement. In California, where I practice, the guardianship papers are filed in probate court, and the potential guardian might be able to represent their own interests without an attorney. See if you can find a do-it-yourself book for your state, or consult an attorney. Based on the facts you give, it sounds like your mother may be able to accomplish her goal.
