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How is a judge to rule when there is no law?

Evan Koslow

Evan Koslow

Last month, I discussed how a judge got the ruling correct, but the law was wrong. But what if there is no law? What is the court to do?

Thankfully, I’ve been extremely fortunate to have obtained some great legal mentors in my life, including a few that happen to be retired judges. But with the story I am about to tell, the bottom line that no one really had an answer for me, even with the guidance of these mentors and after reaching out the court itself.

You may be thinking, “Evan, that is not uncommon. You ask a legal question to different people you can get several different answers.” However, in this case, the issue wasn’t the answers I was receiving — there was no law that can be cited to support any response.

This situation is where the biological parents are deceased and the child, in theory, becomes a warden of the state. In that insistence, you could have a Child in Need of Assistance action commence, but why do that, if you have extended family that is ready to take the child in? However, what if there is disagreement as to who should care for the child between the maternal side and the paternal side of the family? To make matters worse, what if the child is in school and/or has medical issues that warrant decisions to be made right away? Who can make those decisions? Even if the last surviving parent had a will that named a guardianship that does not automatically provide those individuals with the automatic right to make those type of decisions for the child, it just shows that parent’s intent of who they would like to care for their child.

Probate doesn’t handle this. Custody doesn’t handle this (as both parents are deceased there are no true “defendants.” So that leaves you with guardianship. However, unlike custody, which does have an emergency proceeding in place, guardianship does not. That leaves the need of the minor child in limbo and has the extended family — who may be fighting over who should care for the child — in a conundrum.

After talking to my mentors, I reached the decision to advise my clients (who just lost their son, the father of the child, the day before) to file for emergency custody, name the deceased parents (the mother died a year earlier) and, although there is no rule about notifying any “interested parties” for emergency custody cases (as there is in guardianship cases), be completely transparent with the maternal side of the family and with the court and provide notice that they will be seeking temporary custody with the court and in the pleadings set forth the minor child’s interactions/access. At the same time, I advised my clients to notify the court it was their intention to file for guardianship and provide proper notice to all interested parties.

Thankfully for my clients it was the right decision to make, as the court awarded them temporary custody but also ordered that they must file a guardianship case within 30 days and the guardianship case will supersede the custody case.

Was this the right decision? Obviously, I thought so. But what law or rule granted the court this authority? Because the circuit court is a court of equity and this is what was equitable? Perhaps.

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