What are my chances of keeping my non-biological daughter if the father wants custody? 22 Answers as of July 12, 2013

I had been married for 17 years when my still wife became pregnant by her lover. When she tried to tell me the baby was mine I knew it was not true because we stopped having sex when I found out she was having an affair. She finally admitted it was her lover’s but he did not want the baby, I told her she did not had to have and abortion, that I was going to take care of the baby. I took care of everything that had to do with my daughter, my name is on the birth certificate, she gets all of my military benefits, and most important my love and my time. I had been the father and mother of my daughter, wake up at night to change her, feed her at night. My two older sons and I have been with her and she is very attached to me, I am the first thing she looks for when she wakes up, she ask her brothers to call me if she does not see me before I go to work. Almost five years later the biological father wants to get custody and rights, he is doing all this because my wife has a new boyfriend and dumped him because she finally realized he is just a womanizer. What are my chances of keeping custody of my daughter?

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Beresford Booth PLLC
Beresford Booth PLLC | S. Scott Burkhalter
Based on your facts, it appears you will be considered the child parent because the child was born during the marriage and is presumed yours.
Answer Applies to: Washington
Replied: 6/20/2011
Fox Law Firm LLC
Fox Law Firm LLC | Tina Fox
In IL when you are married the husband is presumed to be the father unless this is challenged. Because of the knowledge from the beginning and the length of time (lack of due diligence on the biological father's part) that has transpired you actually have a fighting chance of keeping your daughter.
Answer Applies to: Illinois
Replied: 6/16/2011
Deal & Hooks, LLC
Deal & Hooks, LLC | Shawn P. Hooks
Unless there has been another finding you are presumed to be the child's legal father. A court will consider a number of factors if there is a dispute over custody; including how involved you both have been lately, the bond between her and her brothers, her wishes, and who would best provide for her. You should contact an attorney promptly to discuss how to protect yourself in the event that he does file for custody.
Answer Applies to: Ohio
Replied: 6/16/2011
Cody and Gonillo, LLP
Cody and Gonillo, LLP | Christine Gonilla
Your wife should seek to terminate his parental rights so that you can legally adopt the child; otherwise you can try to assert any custody, visitation or other claims you may have.
Answer Applies to: Connecticut
Replied: 7/12/2013
Law Office of Michael W. Bugni
Law Office of Michael W. Bugni | Jay W. Neff
Let me first see if I've got the facts straight. First, the child was born about five years ago. Second, you and the mother were married and living together as husband and wife at the probable time of conception of the child. Third, you have openly held the child out as your child. If all of these facts are correct, then, it appears that the statute says that the biological father has no right to begin an action to get the child. The statute (RCW 26.26.530) seems to be saying that in this fact pattern that there was a two year period of limitation, beginning with the birth of the child. Unless there is some bizarre factor not listed in your email, the bio-dad had to file an action within two years of the child's birth. Since he did not, his right to file is now time barred. If he files an action, you should hire an attorney to help you have the case dismissed.
Answer Applies to: Washington
Replied: 6/16/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Where are you stationed? There is good news and bad. The good news is you are a "putative father" and a "de facto father" and if you have had actual care, custody and control of the child, you are in great shape. Since my practice is primarily in Collin and Dallas Counties, I thought I would ask where you are stationed, I have a good reference for you if you at Ft. Hood.
    Answer Applies to: Texas
    Replied: 6/16/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Slim for you, but your wife has a great shot.
    Answer Applies to: Florida
    Replied: 6/15/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    A lot depends on the law of the state that you live in. Do you live in New Jersey? Or does the other person live in New Jersey?
    Answer Applies to: New Jersey
    Replied: 7/12/2013
    Vermeulen Law office P.A.
    Vermeulen Law office P.A. | Jacob T. Erickson
    There is a presumption that the child is yours, if the child was born during your marriage. Expect that you will go through a long and nasty custody battle. Remember that it is worth it, because you are fighting for your daughter.
    Answer Applies to: Minnesota
    Replied: 6/15/2011
    Theiler & Mourtos Attorneys at Law
    Theiler & Mourtos Attorneys at Law | Devan J. Theiler, Esq.
    You are facing a difficult uphill battle. If you and your wife divorce, the custody determination typically will be made considering only the babies biological parents. In order to succeed, you would need to prove to a Court (through expert testimony; the evaluation and testimony of an expert can easily cost $10,000.00 or more) that you are the psychological parent and that, biology aside, it is in her best interest to remain in your primary custody. Even if you were to succeed in that claim, however, be aware that it is very very likely that both your wife and the child's biological father will be given visitation and other parental rights. Although you can seek custody on your own, especially when you are not a biological parent, I highly recommend that you speak with and consider retaining an attorney in your area.
    Answer Applies to: New Jersey
    Replied: 6/15/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I urge you to retain an experienced family law/divorce lawyer as soon as possible. This is an issue which should be carefully researched, and evidence adduced, based upon all the facts and circumstances. I wish you the very best. Good luck!
    Answer Applies to: Georgia
    Replied: 6/15/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    Slim as you are not the biological parent nor adoptive parent.
    Answer Applies to: Connecticut
    Replied: 6/15/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    In Ohio, your chances would be pretty good. In many states, the question is not who the father is but rather who the putative father is. The putative father has acted as the father and has supported the child. He has been involved in the child's life. And the child thinks of him as her father. But there is no question you will need legal assistance to pressure claim. Please seek out a domestic relations attorney as soon as you can.
    Answer Applies to: Ohio
    Replied: 6/15/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    I would probably file a petition to establish a parental relationship on the grounds of being your daughter's "natural parent". I would do this right away to avoid any potential issues with the biological father trying to do the same. If you are in my area and are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 6/15/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    I can only answer as regarding Georgia law. From the little you've put in your email, most likely the only chance you have of getting legal rights to the child is if you stay married to your wife, contest the action filed by the bio father, and then get your wife to consent to a stepparent adoption so you can adopt the child. If you and your wife divorce, I don't see that you have any standing to ask for custody. Seek the advice of a lawyer regarding the specific details of your situation.
    Answer Applies to: Georgia
    Replied: 6/15/2011
    Law Offices of John J. Ferry, Jr.
    Law Offices of John J. Ferry, Jr. | John J. Ferry, Jr.
    You should have standing to fight for custody in court, but it may not be easy. See a good family law attorney as soon as possible.
    Answer Applies to: Pennsylvania
    Replied: 6/15/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    In Georgia, any child born in marriage is legally the husbands and biology is irrelevant unless a court rules otherwise. It is very unlikely that a court, absent unusual facts, will make a legitimate child illegitimate ("bastardizing the child") so ignore what he says and do not talk with him. In the highly unlikely event that he files a court case, get a lawyer. Otherwise you do not need to worry.
    Answer Applies to: Georgia
    Replied: 6/15/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    In California, a child is conclusively presumed the child of the marriage when the parties were married at the time that the wife became pregnant. Any dispute in paternity would need to be brought within 24 months of the birth of the child and can only be brought by the husband or the wife. The child is deemed to conclusively be your natural child. The putative father (or biological father) has absolutely no rights to the child. If he were to initiate proceedings against you, he would most likely loose. If you are served with paperwork, you should immediately contact a family law attorney know has experience with paternity actions involving putative fathers and children of the marriage.
    Answer Applies to: California
    Replied: 6/15/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Given the facts you stated, the chances are excellent of remaining as the custodial parent. I.e., it would be highly unlikely for a judge to take your child out of her home and place her with biological dad. As for allowing the biological father to have any visitation, there are not enough facts to prognosticate on whether a judge would allow it, and if so, how much visitation time. Because you are on the birth certificate, the biological father would first need to establish paternity, and then if established, request visitation. If the biological father did establish paternity, because either you and your wife stipulated, or due to a DNA test, then you may want to consider adoption. It would be wise to hire a local family law lawyer near you that has experience with these types of custody issues, including adoption. Good luck!
    Answer Applies to: California
    Replied: 6/15/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Generally, you should have a strong case to retain parental rights & responsibilities because by law the fact that the child was born while you were married creates a legal presumption that you are the legal father. In addition, in most states you have additional strength from the reality that you are likely considered to be the psychological parent even if not the biological parent. The legal technicalities affecting the biological father's rights to even pursue any custody or parenting rights will be different in each state, but the worst case scenario will still boil down to a judge deciding what is in the child's best interests. Do not be intimidated by the bio-father's threats and, instead, consult an experienced attorney who can evaluate the circumstances in light of the actual law of your state. Then, you can simply wait to find out if the bio-father actually carries out a threat to "go to court". Until he does, he has absolutely no legal rights to do anything else. You don't say whether you are still married to the child's mother, but that could also be an important fact in what eventually might happen.
    Answer Applies to: Colorado
    Replied: 6/15/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    Your changes of obtaining custody are very good. To give better advice, I would need to know whether you and your daughter's mother are divorced, and if so, who was awarded legal custody of your daughter. If the biological father knew of your divorce and didn't take any action then, he may be barred from asserting his claim now.
    Answer Applies to: Oregon
    Replied: 6/15/2011
    Komanapalli Massey LLP
    Komanapalli Massey LLP | Mark A. Massey, Esq.
    The child was born during your wife's marriage to you, so you are the"presumed father." As presumed father, you have all of the parental rights to your daughter, and the biological connection, or lack thereof, is meaningless under the law.The biological father has no parental rights whatsoever. That is the price he pays for messing with another man's wife. Don't worry. Your daughter is not going anywhere. She is yours and yours alone. Call us if you wish to retain our services to ensure that what I have advised youis not missed by the court, should that jerk really attempt to establish his paternity. I would make short work of him. Thank you for serving our country. You sound like a good man and a great father.
    Answer Applies to: California
    Replied: 6/15/2011
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