Can I claim child custody on a child that is not mine? 20 Answers as of July 23, 2011

If my wife has a child with a ex boyfriend and there are no legal custody arrangements who has legal right over the child? also is the other parent allowed to just move out of state with the child without mothers permission, and if he does what can be done?

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Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
You can't claim custody of your wife's child with another man. If there has never been a paternity case filed regarding that child, your wife's child custody rights are far superior to the alleged father's rights. The father doesn't have the right to move out of the state with the child. If he does so, your wife should retain an experienced Family Law Attorney, without delay, to file a Paternity case, before jurisdiction under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) changes to the new state, which it will do six (6) months after the child has lived in that state.
Answer Applies to: California
Replied: 7/23/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
This is a complex question with multiple layers. First, you are referring to custody suit that has the affect of adoption by estopple. You don't need to worry too much about the terminology, the fact is that you can ask for custody but only if you have standing. Since you did not give time lines here, I don't know if you have standing or not. Assuming you have standing (the legal right to file a request in court) to seek custody, then you can ask the court for custody but you do have an uphill battle - expect mom to show up and say "he is not the father and therefore has no right to ask for custody of my child" which is a pretty convincing argument all by itself. You have to overcome the "common sense" portion of the argument by showing that it is in the child's best interest. Now for your second question, don't do it. If you "just move out of state with a child that is not yours without mom's permission" you will see your name on billboards annotating Amber Alerts. You can and likely will be arrested on sight, and you can fight a kidnapping charge on top of the custody battle. At this moment, knowing you are not the father, you have no parental rights. Leave town with the kid and no permission, that is kidnapping, a federal offense. If your goal is to leave town, get some custody orders first.
Answer Applies to: Texas
Replied: 7/20/2011
Michael Rose Attorney at Law
Michael Rose Attorney at Law | Michael Rose
If the father of the child has never been to court to establish that he is the legal father then he can not take the child anywhere unless mother gives permission. There is a possibility that in the future your husband can adopt.
Answer Applies to: California
Replied: 7/20/2011
Law Office of Robert L. Fiedler
Law Office of Robert L. Fiedler | Robert L Fiedler
Custody is normally for the parents. A third party can make a claim for custody but the restrictioins are significant in the ability for the third party to prevail. If there is a custody agreement or if there has been court invovlement in the custody issue, the parent cannot do this without potentially significant sanctions from the court.
Answer Applies to: Connecticut
Replied: 7/20/2011
Law Office of Patricia Van Haren
Law Office of Patricia Van Haren | Patricia Van Haren
If you were married to your wife at the time that she had the child, then you are presumed to be the natural father of the child. If your wife had the child prior to your marriage then you would need to adopt the child in order to have custodial rights over the child. Depending on how long you have been in the child's life you may be able to seek De Facto parent status, however it is very difficult to obtain.
Answer Applies to: California
Replied: 7/20/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    A child born during a marriage is presumed to belong to the parties of the marriage. Only if a child is proven by DNA not to be the child of the husband would a third party have the right to request custody.
    Answer Applies to: Alabama
    Replied: 7/20/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    You have a lot of questions. For issues this specific, you need to spend some time with a domestic relations attorney. In general in Ohio your wife is the residential and custodial parent of the child until further orders of the court. The father is absolutely not allowed to do anything without mother's permission. She can charge him with kidnapping, and can seek return of the child pursuant to the UCCJA through the juvenile court. But as I said, you really need to see a lawyer.
    Answer Applies to: Ohio
    Replied: 7/20/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    First, if a child is born while the mother is married. It is her spouse that is the presumed father. To change that, an action must be commenced by the biological father to determine paternity or by one of the other parties to disclaim paternity. Until a court order is entered establishing the the unwed biological father's rights, he has none that are enforceable.
    Answer Applies to: Minnesota
    Replied: 7/20/2011
    Osterman Law LLC
    Osterman Law LLC | Mark D. Osterman
    Your wife needs to secure these issues before she has to go swear out a kidnaping complaint at the FBI. You have the right to the tax deduction if you file with her he does not because he is not head of household. Check with your tax professional to be sure. Your wife needs to see a lawyer and get rights defined. If he is really a deadbeat dad, then all you have done is protect your FAMILY not his.
    Answer Applies to: Indiana
    Replied: 7/20/2011
    Rosenberg & Press, LLC
    Rosenberg & Press, LLC | Christopher D. Hite
    She has the only legal rights unless he legally petitions. You do not have any parental rights, although you could try to petition a court for them, which would be difficult.
    Answer Applies to: Connecticut
    Replied: 7/20/2011
    Horizons Law Group, LLC
    Horizons Law Group, LLC | Michelle B. Fitzgerald
    A child born during the marriage is considered a child of the marriage, unless the presumption is overcome by both testing and best interest of the child. If best interest is to remain a child of the marriage, then you would have legal rights.
    Answer Applies to: Wisconsin
    Replied: 7/20/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    In general, the only people with rights in the child are the biological parents. Has paternity ever been established? Was the child born during your marriage to your spouse? The answer to those questions will affect the footing of the case. It terms of the "father" just taking the child and moving out of state, before he could do that legally, it seems to me that paternity would have to be established, and he would have to comply with the terms of the state relocation act. If the "father" departs with the child without following proper procedure, then, you will definitely need to hire an attorney right away. You should also probably talk to the police.
    Answer Applies to: Washington
    Replied: 7/20/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    If you are not the father of the child, you have no rights to the child. The only way for you to get custody would be for the biological father to terminate is parental rights and for you to adopt the child. Since the father has no custodial rights, he would not Be allowed to move out of state with the child; that could possibly considered a crime.
    Answer Applies to: Georgia
    Replied: 7/20/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law if there have never been any court orders determining the rights of the parents, then the rights are still undetermined. In other words, neither parent is in violation if they move with the child, etc. To establish what the rights of the two parents are as to where the child should live, etc., one of them would need to petition the court for establishment of a parenting plan. As a step parent you may also be able to petition the court for third party custody. If you are interested in doing that, consult with an attorney in your area to find out more about what would be required.
    Answer Applies to: Washington
    Replied: 7/20/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    You can't claim anything. It's not your child (unless you adopt). Unless the father legitimates the child, the mother has sole and complete custody. The biodad can move, of course, wherever he wishes.
    Answer Applies to: Georgia
    Replied: 7/20/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    if someone moves out of state the other parent can file for immediate custody in this state. If there has not been a paternity action the child is presumed to be a child of the marriage
    Answer Applies to: Connecticut
    Replied: 7/20/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Generally, if you are not a parent your only argument for seeking judicially sanctioned custody has to be either based on the fact that the child is living in your care (but not with the mother) OR in connection with a step-parent adoption by you. Since it does not appear there is any current court order establishing parental responsibilities for either your wife or her ex-boyfriend, there is no legal authority for the bio-father to take the child anywhere without the mother's permission. Strictly speaking, until a court specifies what rights he has, the bio-father really has no rights - especially if he is not even shown as father on the child's birth certificate. That simply means that on the face of things, if the bio-father physically has the child, he is guilty of kidnapping unless he has mother's permission and, if there is no court order, mother should be free to revoke whatever permission she may have given in the past. If the threat of removing the child from Colorado is real and imminent, you and your wife need to immediately consult an attorney to review the complete factual history and evaluate the possible options available to you. But, the answers to your questions can only be provided by a court approved parenting plan; until that happens, there are no meaningful or useful answers.
    Answer Applies to: Colorado
    Replied: 7/20/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    No, you cannot claim custody of a child that is not biologically yours, unless the state places the child with you as a foster parent. And no, someone cannot just relocate out of state without the other parents' permission. If they do, then legal action needs to be taken immediately.
    Answer Applies to: Florida
    Replied: 7/20/2011
    Law Offices of Paul A. Eads, A.P.C.
    Law Offices of Paul A. Eads, A.P.C. | Paul A. Eads
    The determinative issue is when the child was born. There is a presumption that children born during the marriage are children o the marriage irregardless of whether they are biologically H's children. If child was born before marriage, I would strongly encourage her to file a paternity action and possibly appear via Ex Parte to block the move.
    Answer Applies to: California
    Replied: 7/20/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    There is a legal presumption that a child born during the marriage is a child of the marriage. It is not clear from your questions how old the child is, whether the biological father is involved, etc.
    Answer Applies to: Washington
    Replied: 7/20/2011
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