Ask a Divorce Lawyer: As an aunt, do I have any rights to my nephews?

Question: My sister is divorced with two children from that marriage. I want to take her children on a vacation out of state.

Their father says he wants them to go with me, but he’s being very difficult in terms of trying to establish dates to even take the trip.

As their aunt, do I have any rights or am I at his mercy?

 

Answer:

Unfortunately, you are probably at his mercy.

In every custody or parenting time dispute between a third party (even a blood relative) and a natural parent, the federal Constitution requires courts to presume the natural parent’s decision in the child’s best interests, see, e.g., Troxel v Granville, 530 US 57 (2000); Hetzel v Hetzel; 248 Mich App 1; 638 NW2d 123 (2001), because natural parents have a fundamental right to the care, custody and rearing of their children. Moreover, as a third party, you do not have standing to enforce your sister and her ex-husband’s custody order. Some state legislatures have expanded third party standing by statute, but generally the statutes apply to third parties seeking physical custody (not visitation time) when one of the natural parents has died or no longer has parental rights.

Therefore, assuming your sister’s ex-husband had a court-ordered duty to cooperate with her parenting time scheduling (including the time she gives to you for your trip with the children), only she can demand that he abide that duty in court. This may mean filing a motion to compel his cooperation and/or filing a motion to hold him in contempt for refusing to cooperate. 

All is not lost, however. You should document his behavior for future use in court, if your sister must file a motion. Write him a letter that clearly explains why you want to go on the trip, the efforts you have made to get his cooperation, the reasons you believe the trip will be in the children’s best interest, when you plan to depart and return, and so forth. This letter will support an argument that his conduct is unreasonable.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Indiana. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information. Cordell & Cordell, P.C. does have an office in Indiana, and we would be happy to discuss this case with you.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

End of Content Icon

One comment on “Ask a Divorce Lawyer: As an aunt, do I have any rights to my nephews?

    Similar Question
    Hello. I have a similar question. My ex currently has primary custody and placement of our son. Just recently she told me she is leaving for Mexico in a few weeks and forbids me from keeping him during that time. She wants her sister to watch him while she is away. Do I have the rights to my son while she is out of the country? Are there any sort of court orders I can place to prevent this?

Leave a Reply

Your email address will not be published.