I Want Custody of My Niece—What Should I Do?

Dear Newsweek, My wife and I are looking for an expert's help on getting custody of our niece. My wife's sister (niece's mother) left her daughter with us for about a year. When we don't drop everything every time she needs something, she gets mad and threatens to take her daughter away and give her to her friend's mother.

We are almost certain she is addicted to drugs, and she doesn't have a stable home. We tried having her live with us, but she moved out because we confronted her about being out all night every night, and we wanted her to stay home with her kids.

We just want her to be a mother to her kids and give them a stable and safe environment. But we don't want her to take our niece away until she does. We are just so worried every time she threatens us that she will take her daughter away and that she actually will do it.

We have no clue whether she will be in a safe environment. What can we do to get custody of her until her mother can get her life together?

Zaul, Unknown Location

There Is an Avenue to Pursue the Relief You Seek

Matheu D. Nunn is a partner and co-chair of the family law practice at Einhorn, Barbarito, Frost & Botwinick, PC. He is a fellow of the American Academy of Matrimonial Lawyers.

This sounds like a terrible situation for everyone involved. Like many family law issues, it combines the law with emotionally fueled decisions—in this case about a child's best interests.

The first question that needs to be answered is whether you seek permanent legal and physical custody (i.e., whether you seek to replace the parent), or whether you want temporary custody. It seems as though you, for the time being, want temporary legal and physical custody rights, so that you can make decisions for your niece and have certainty that her mother's whims will not detrimentally impact your niece (or you).

As a starting point, there is an avenue in every state to pursue the relief you seek. In most states, you would file an application or verified complaint in the court system's family part or family court. The application will require the presentation of facts (and law) as to why the child's best interests—the legal standard in every state for custody determinations—would be served by the child remaining in your temporary custody.

In your case, this could also result in court-mandated substance abuse evaluations and risk assessments of the child's mother. If, however, you seek a more permanent custody, you would likely have to petition for adoption. Although the standard in an adoption case is ultimately best interests, an adoption requires the termination of the parental rights of your wife's sister.

This complicates the process because it implicates the fundamental constitutional right of parents to raise their children. In turn, there is a heightened standard to terminate the parent's rights. Regardless of which route you choose, these are complicated legal issues that would be best served with legal representation.

Mediation Could Provide Solutions

Courtney Chicvak is the CEO and a conflict resolution specialist at Courtney Anne Chicvak Mediation and Coaching. She is a family mediator who oversees family court mediators in Suffolk County on Long Island.

Mediation between the reader, your wife, and your wife's sister could provide an opportunity to find solutions that work for everyone collaboratively. Mediation involves a neutral third party facilitating a confidential discussion to discover solutions.

Mediation offers a chance to improve communication and maintain a relationship between the parties. In this scenario, they could discuss communication, schedules, behavior expectations, and other plans for moving forward together.

However, mediation is inappropriate when serious concerns about the child's safety exist. Of course, you can also hire an attorney and pursue legal action. You can also consult with an attorney during mediation.

If you go to court, the judge will decide on the outcome, and the process can be costly, emotional and time-intensive. Also, it is not always a guarantee that you will prevail.