[Source: The Mercury News]
May 2, 2019
Top Family Law Attorney and expert Peter M. Walzer explains special circumstances under which an aunt can get custody from a surviving parent
Following Nipsey Hussle’s death, the slain rapper’s sister Samantha Smith made a public promise on Instagram to help look after his girlfriend Lauren London and his two children, 2-year-old Kross and 10-year-old daughter Emani.
Smith’s vow on behalf of Kross, who is London’s child, probably was more in line with offering emotional support and occasional babysitting. But her intentions toward Emani, who has a different mother, have turned out to be far more serious — she has petitioned a judge to make her Emani’s legal guardian.
In fact, Smith’s move could lead to a difficult and bitter custody fight because Emani has a surviving parent — her mother, identified by The Blast as Tanisha Foster, Hussle’s ex-girlfriend.
Under California law, a mother or father has a fundamental right to be their child’s parent, with all the implied rights and responsibilities for care and custody. While this right is not absolute, Foster would only lose her parental rights to a guardian under special circumstances.
Foster would either have to agree to let Smith be Emani’s guardian, or Smith or someone else would have to prove that she is an unfit mother, according to Peter M. Walzer, a top Los Angeles-area family law attorney.
“In this case, the surviving parent must consent, or it must be established that she is unfit,” family law attorney Peter M. Walzer wrote in an email to this news organization.
On Tuesday, The Blast and TMZ reported that Smith and Hussle’s family were concerned that Foster — who also uses Hussle’s real last name, Asghedom — may not be able to provide “a stable environment” for the girl.
But as of Tuesday, Smith’s request for an emergency order granting her temporary guardianship was denied by a judge, The Blast reported. The ruling stated, “No urgency demonstrated for granting this relief prior to hearing on May 14th.”
The judge also added that Smith must give Foster notice of the May 14 hearing.
Sources told TMZ that Foster wasn’t her daughter’s primary caretaker — Hussle was. Before the rapper was shot and killed outside his Los Angeles store March 31, Emani was living with him, Smith’s petition in Los Angeles County Superior Court suggests.
Sources also told TMZ that Hussle received help in raising Emani from his family, including from Smith, who always “has been a presence” in Emani’s life. Smith is seeking guardianship to ensure that Emani “can continue to live with family members with whom she has always had close ties,” the petition said.
However, a 2013 custody order viewed by The Blast describes Foster as Emani’s primary caregiver. While Foster and Hussle shared legal and physical custody, Emani lived with Foster during the week and Hussle on weekends. Foster also appeared to be an active presence in Emani’s life, at least judging by photos she regularly shared on Instagram of her and her daughter together.
It is, of course, possible that circumstances regarding Emani’s care and living arrangements have changed since 2013.
Still, The Blast raised questions about why Smith apparently tried to go behind Foster’s back in seeking guardianship. Smith filed her petition without notifying Foster, and Foster has yet to respond.
Perhaps Hussle’s family worried that Emani’s welfare would be at risk if news got out about Smith’s efforts to become guardian, The Blast said. The family would be naive to think that a court filing that involves anything having to do with Hussle wouldn’t become public. His death was a national story, with former President Barack Obama paying tribute to him in an open letter read at his memorial service.
But “money” could be another reason Smith tried to be circumspect about the petition, The Blast said.
If Foster, as the surviving parent, assumed full custody of Emani, she would be in the position to collect child support from Hussle’s estate, which could end up being pretty sizable with sales of his music and merchandize surging after his death. Presumably, Smith could also seek child support as Emani’s guardian.
TMZ also reported that the rapper, who also was a successful businessman, had set up trust funds for his children. Whoever has custody of Emani could petition for access to the funds to meet the needs of the child under court supervision, Walzer said.
This story has been updated to include information about a judge denying Samantha’s request for an emergency order granting temporary guardianship.
By Martha Ross | Bay Area News Group