Monday, March 21, 2011

CAN A NON-BIOLOGICAL PARENT GET CUSTODY OF A CHILD?

I frequently receive questions from people regarding family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: 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?

ANSWER: It is not only possible, but it is likely that your brother can get custody of his non-biological child under the fact scenario that you presented.

Your brother would 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 held the child out as his own.

By signing the birth certificate (obviously with mom's consent) and raising the child as his own, your brother 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, on the child's birth certificate.

Children are not possessions to hand off to friends. The fact that your brother's wife relinquished care of the parties' child to friends should help your brother to gain custody of his child. Your brother has proven to be more than capable of providing care for his daughter, and if his wife was unable or unwilling to care for their daughter, she should have left their daughter with your brother.

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 he risks his wife qualifying to seek custody in another state.

This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net

No comments: