Can a non-biological parent get custody of a child? 6 Answers as of April 04, 2011

My brother married someone while she was pregnant with someone else's child. He signed the birth certificate for the baby and the biological father never came forward. Now my brother and his wife are getting a divorce, and the mother left the state and left the child with friends (who are not related to the child in any way). My brother has raised this child as his own since the day she was born and all he wants is to have her back. Does he have any rights, since he is not the biological father but signed the birth certificate and raised her since she was born?

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Goodman, Dicus, and Teinert, LLP
Goodman, Dicus, and Teinert, LLP | Paul M. Teinert
Yes. It appears that your brother would qualify as a Presumed Parent under the CA Family Code section 7611. Your brother should contact an experienced family law attorney immediately to assist him filing for divorce and custody.
Answer Applies to: California
Replied: 4/4/2011
Masson & Fatini, LLP
Masson & Fatini, LLP | Richard E. Masson
Your brother is what is known as a "presumed father." As such, he has, essentially, more rights to the child as the child's biological father and his rights are equal to mom's rights. Assuming, therefore, that your brother has not committed any domestic violence against the child or his spouse, and/or has committed any crime that would deny him custody of the child, he should immediately go into court and seek custody of the child.
Answer Applies to: California
Replied: 3/23/2011
Goldberg Jones
Goldberg Jones | Zephyr Hill
If the child was born during their marriage, he is legally presumed to be the father and has a full set of rights. He should consult an attorney ASAP. I would want more information to advise him properly, but he might be able to drive over and pick up the child at his convenience, with a police escort if necessary.
Answer Applies to: California
Replied: 3/23/2011
Law Office of L. Paul Zahn
Law Office of L. Paul Zahn | Paul Zahn
Yes, the California family code provides that a person has held themselves out as the parent of a child can be deemed to be the "natural" parent of the child and be given all rights and privileges. I strongly suggest your brother hire an attorney to assist with this, however. I offer free consultations. Please have him contact me.
Answer Applies to: California
Replied: 3/22/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
It is possible that your brother can get custody of his non-biological child, under the fact scenario that you presented. Your brother appears to qualifiy as a Presumed Parent,under Family Code Section 7611(d), which requires that the party seeking presumed parent status 1) has received the child into his home; and 2) openly heldthe child out as his own. By signing the birth certificate (obviously with mom's consent) and raising the child as his own, your brother appears to have satisfied both requirements. Your brother also qualifies as a Presumed Parent of the child, under Family Code Section 7611(c)(1), having been named, with his consent, onthe child'sbirth certificate. The UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) makes the state where the child has resided for the last six months the child's "home state", so your brother should promptly retain an experienced Family Law Attorney to file a Divorce case and seek custody of his child, before his wife qualifies to seek custody orders in another state.
Answer Applies to: California
Replied: 3/22/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Yes. he has rights as the defacto parent (based on the facts you stated in your question). It would be best for him to contact a local family law lawyer directly to discuss the facts of his case.
    Answer Applies to: California
    Replied: 3/22/2011
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