posted
My husband's brother is in a tricky situation right now and I'm trying to figure out what my husband and I should do about it. It's a bit complicated, so please bear with me...
My brother-in-law, who I will call R (I don't want to use names, but this could get annoying if I keep calling him my brother-in-law), was supposed to get married to K on Valentine's day. She was almost 8 months pregnant at the time. Several days before, however, she was admitted to the hospital with severe pneumonia. It got so bad that she went on a respirator and the doctors put her in a coma that she has yet to wake from. On February 15th, while K was unconscious, they took the baby from her via c-section.
The baby, M, is doing well for being a premie. She is now breathing on her own and just starting to be able to suck from a bottle (although at this point she is still mostly using the feeding tube). K is still unconscious, may or may not ever recover (they are giving her 70% odds right now), and even if she does recover, it may be a while.
Since R and K were not married, however close to the date they were, there is no legal default that makes R the father of this baby. K cannot vouch for him as she is unconscious. The hospital has decided that K's parents have authority over the baby (although, apparently, in their state there is not actually a default course for custody or power of attorney to take). When the baby is released, if K does not wake up and get to a point where she is of "sound mind and body", DHS gets control and decides who gets the baby.
To add to this, K's parents have decided to exert control over the situation. They have now officially disallowed R from seeing K or knowing how she is doing. They have not kept him from seeing the baby (yet), but have taken away his ability to let anyone else see her. They seem to be a bit crazy and dangerously unpredictable.
My husband's family has no money. A pro bono lawyer may take R's case, but that lawyer has apparently said that there is no rush and no need to do anything until the baby is released from the hospital. A lawyer that my husband consulted disagreed, but hiring her would cost thousands of dollars (depending upon how hard K's parents make this).
The bottom line is that R wants his paternal rights. I don't blame him for wanting those rights now and not wanting to wait to see what DHS will decide to do with the baby. (I've heard horror stories.) I want to help him, but it will be soooo expensive for us. Strictly speaking, we can come up with some money (I'm iffy about exactly how much money and worried that if we start this process it could end up being more money than we can afford). I'm just not sure what to do. K could wake up tomorrow and we wouldn't need to go through this at all, or she could die. (And as K's parents have forbidden R to have any status reports, we may not know for sure what's happening.) It's just a mess.
So...what would you do? You can just say, "Wow, that sucks." I wouldn't blame you. I may just be posting all of this to get it out of my system anyway. Posts: 2392 | Registered: Sep 2005
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posted
I don't really know anything about the law...but wouldn't asking for a paternity test help? That way he could at least prove that the child is his. It is a terrible situation though...but I would hope that since they were getting married if he could prove that it is biologically his, then a judge would see things his way. Of course our legal system is often not fair, particularly when it comes to issues with children.
I do wish him the best of luck in gaining custody...and for the recovery of his fiance
Posts: 1901 | Registered: May 2004
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posted
IANAL... but it would seem to me that the hospital is doing the right thing legally by dealing with K's parents, especially since it sounds like she doesn't currently have a health care power of attorney appointing R as her agent. Her next of kin is an infant, she's unmarried, and her next closest blood relative is mom and dad.
It sounds like there's quite a bit of bad feelings between K's parents and R that predates the pneumonia and hospitalization, and that bodes very badly for the relationship in my eyes. I'd think that for the sake of the baby and K, they'd want to try and make up their differences.
If K's parents are truly unwilling to work with him amicably, perhaps he could file a custody and paternity suit and have himself and M DNA-tested to prove he's the father. I have no idea what that might cost, and it's bound to make whatever is going on with her parents even harder to "fix".
I find it interesting that the pro bono lawyer says there's no rush to address the situation. Maybe R could talk to that other lawyer about setting up some kind of payment plan, especially if he tells her what the pro bono's attitude was?
Posts: 4515 | Registered: Jul 2004
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posted
I agree with Coccinelle-- most states have a procedure for establishing paternity in cases like this, and the state will probably help him if he seeks paternal rights.
Posts: 21182 | Registered: Sep 2004
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posted
I didn't think I would have much time to post but my students left early....
First, what a terrible situation for everyone involved.
Second, I'm not sure which state you're in, but (in Texas) part of the Office of the Attorney General's job is to ensure that children have two legal parents. If a legal father hasn't been established, DHS will normally put the child in the maternal grandparent's custody.
The OAG will provide many of the services that R needs for free or at a minimal cost. In Texas a paternity test through them is $180 (a steal, compared to $1500-2000 through a private company). Once legal paternity is established, then he can petition the court for custody with a very good chance of getting it.
I wish R well, this isn't fun stuff to deal with.
Posts: 862 | Registered: Oct 2003
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posted
I didn't think about the attorney general's office...that might be worth a try.
I agree that as unfair as it is, the hospital has no choice but to side with K's parents against R, at least on her care. I just find it a bad omen of what might happen when he tries to establish paternity. As for paternity tests, the lawyer we spoke to said that unless a judge orders one, there is really no point in going out and getting one on your own. (Originally, my husband and I were hoping that would be the only cost and we could have covered that with no problem.)
No lawyer in his/her right mind would do a payment program with R right now. He lost his job because he's spending so much time at the hospital and he already has a huge debt because of a medical problem he had last year. I wouldn't be surprised if he and K have to file for bankrupcy just as soon as she's out of the hospital because of all the medical bills. (But that, thankfully, has nothing to do with me.)
Mostly right now I'm trying to decide if my husband and I need to hire a lawyer on his behalf. I'm worried about what will happen if we don't and where all the money will come from if we do.
Posts: 2392 | Registered: Sep 2005
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posted
Darn it! I just went to the web page for the Attorney general in the state (I may as well say it's Arkansas)...it seems that:
quote:In Arkansas, the Attorney General does not have general authority or jurisdiction over child support, child custody, domestic violence issues or matters within the purview of the Department of Human Services.
It was a nice thought, though.
Posts: 2392 | Registered: Sep 2005
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posted
Worth a call anyway. Not having general authority may mean that they don't automatically step in but rather wait to be contacted by a party? And if they still refuse, ask if they can point you to the right agency.
Posts: 4515 | Registered: Jul 2004
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posted
No need for a paternity test? That seems very odd to me, because I would think the second he is established as father, the whole issue goes away... Doesn't a direct parent get presumption of custody over *any* grandparent unless they are somehow proven unfit?
I'm not a lawyer either but I find the advice not to have one performed outright shocking...
Posts: 3846 | Registered: Apr 2004
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posted
It seems that any solution now has got to involve a DNA test at some point. I just wonder though what the recourse was in such situations before there were DNA tests.
Posts: 3742 | Registered: Dec 2001
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posted
It wasn't no DNA test...it was wait for the judge to order one. The reasoning went something like this: Judges have their own biases about which tests are more accurate than others so if you get one on your own you may get one from a place that judge thinks is untrustworthy and have to do it again. Also, there may not be a need. If no one challenges your claim to paternity, the judge is just likely to give it to you. Finally, if no one is currently reviewing the case then there is no one to report the paternity test results to.
But yes, it is likely that at some point, there will be paternity testing done.
quote:Has he contacted the local Legal Aid office?
Yes, and this may be the crux of the problem. You see, the free lawyer has told him that there is no hurry to try to get paternity established until the baby is released from the hospital. The one my husband consulted said that waiting until then could cause all kinds of problems and that there is no telling what DHS will do with the baby while everyone else decides who gets her and who is the father. She could even end up in the foster care system.
So we have two conflicting points of view from two different lawyers ... as if the law isn't hard enough for us mundanes to understand anyway!
Posts: 2392 | Registered: Sep 2005
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posted
I don't know how relevant this information would be to their situation. I took a bioethics class last semester (our professor was of course a lawyer) and one of the things we talked about with people in a coma is trying to determine the wishes of someone who can't give consent. They use the phrase "clear and convincing evidence" that will allow a judge to decide if that is a wish the patient would want.
For example, if the patient had many loved ones that agreed that the patient said to them that he/she be kept on life support for longer, that would be "clear and convincing evidence."
I don't know if wishes about what a patient's medical care can be extend to custody cases like this (or anything beyond medical care, for that matter). In my mind I was thinking that there would be appointment or scheduling documents that would prove they were going to get married (possibly documents signed by K) that would be evidence of K's consent to have R be the father of their child. Possibly even other people who could vouche for K's decision.
Just a thought. I'm so sorry to hear about this awful situation. Best of luck to your family.
Posts: 326 | Registered: Aug 2004
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