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Its really not that simple. Legally without an action of paternity or a stipulated action of custody, support order etc in your homestate. It will legally be assumed that first the husband is the responsible, legal father of the child. Don't even assume that because your bio dad you will get custody automatic. In situations where its one biological parent vs a grandparent that is true, but custody will always go to what is in the best interests of a child. And stepdad will have an advantage because of the everyday interacting with the children.
Please consult a lawyer. Each state has different rules. Please don't poo poo this advice away.
Fair enough--get a lawyer. I still think the biological parent who's been supporting his children financially and emotionally is going to have a massive advantage over a step-parent.
"It will legally be assumed that first the husband is the responsible, legal father of the child."
This is not true if the father is on the birth certificate.
Based on what the OP stated, the father is not a "bio dad". The child knows, receives support, and is in contact with her father and spends meaningful time with him, or at least every weekend.
"And stepdad will have an advantage because of the everyday interacting with the children."
Well, you could easily argue that unless step-dad is homeschooling these kids, that their real dad--and he is a real dad, even if he agrees that the kids should stay with mom during the school week--spends more time with them than step-dad, because real dad sees them on weekends and weekdays is only what, 4 waking hours? 4 * 5 = 20, that's two to four hours less than real dad spends with them on weekends.
I think this is an extremely hard case for the step-parent to make, but if you know of any states where a step-parent has rights over a parent who provides financial support, sees the kids regularly--well, that's pretty messed up. It basically means that by living with my partner in a domestic partnership, I've un-fathered my children's dad.
He would have argued for full custody if that were the case, but I'd have refused, because then I would have lost my rights as a parent, as my kids would be with his wife and I'd be un-mothered.
Your argument is logical and is not legally uncorrect. A third element which was part of the situation was ignored. If mom dies, sure biological parents are on birth certificate and that proves legal paternity. But how do you legally prove an relationship or financial support of children without legal documents? He said/ She said? or interview the child(who maybe just might be too young? OPs words.
"She never married the father of her child, but he is listed on the birth certificate. They have no formal or written custody or child support arrangement. However, he pays her child support in cash every month and sees the child on weekends.
You see stepdad will automaticly be persumed to have a day by day relationship with the child and be providing a stable home etc because they all physically live together.
Its never good legal ground to leave things to he said/she said etc. And today we are seeing a growth of 3rd parties(grandparents, etc) getting custody.
I can see your point. I don't like the idea that that is a possibility in anything but the most extreme drug-related / psycho-bio-parent scenarios, but sometimes crazy stuff happens.
It's going to be an uphill battle for a step-parent to assume custody over a biological parent, especially if bio dad is involved with the kids emotionally and financially and isn't any sort of threat to the children. Whether or not child support is paid on record won't really matter if he is the legal father. He's got the upper hand here.
Each state is different, but step-parent rights are really the same as 3rd-party rights. Bio dad will get custody and the step-parent may get some visitation, especially if there are half-siblings in the picture. There are also extreme examples where the step-parent really goes out on a limb for a child but these are all uphill battles for the step-parent.
Has the person in question actually sat down with the bio dad and asked him what he wants to happen? I see lots of talk about a court battle, but why jump right to that? Sit down, and have a convo and just lay it all out and see what he wants to do. If he wants to take custody, more than likely, he will be able to unless there are some exceptional circumstances here to which we aren't privy to
Your argument is logical and is not legally uncorrect. A third element which was part of the situation was ignored. If mom dies, sure biological parents are on birth certificate and that proves legal paternity. But how do you legally prove an relationship or financial support of children without legal documents? He said/ She said? or interview the child(who maybe just might be too young? OPs words.
"She never married the father of her child, but he is listed on the birth certificate. They have no formal or written custody or child support arrangement. However, he pays her child support in cash every month and sees the child on weekends.
You see stepdad will automaticly be persumed to have a day by day relationship with the child and be providing a stable home etc because they all physically live together.
Stepparents don't take precedent over blood relatives. Kids are taken away from stepparents and given to maternal grandparents and aunts, who have no proof of financial support. All the biological parent needs to prove is biology and maybe relationship. Pictures and witnesses can establish the relationship. Even that isn't required since children are often sent to live with relatives they've never met. The stepfather has no legal standing. His being married to the mother is irrelevant unless he married her before the birth of the child.
Quote:
Originally Posted by hawaiian by heart
And today we are seeing a growth of 3rd parties(grandparents, etc) getting custody.
Grandparents are biologically related. The stepfather truly has the least rights. His having a day-to-day relationship and a stable home doesn't trump biology in the eyes of the court. It has always been mindboggling how the courts provide stepparents with no rights over the children living under their roofs, from education to medical decisions, but that's the way it is.
Stepparents don't take precedent over blood relatives. Kids are taken away from stepparents and given to maternal grandparents and aunts, who have no proof of financial support. All the biological parent needs to prove is biology and maybe relationship. Pictures and witnesses can establish the relationship. Even that isn't required since children are often sent to live with relatives they've never met. The stepfather has no legal standing. His being married to the mother is irrelevant unless he married her before the birth of the child.
Grandparents are biologically related. The stepfather truly has the least rights. His having a day-to-day relationship and a stable home doesn't trump biology in the eyes of the court. It has always been mindboggling how the courts provide stepparents with no rights over the children living under their roofs, from education to medical decisions, but that's the way it is.
Another great post from Hopes. I agree completely.
Stepparents don't take precedent over blood relatives. Kids are taken away from stepparents and given to maternal grandparents and aunts, who have no proof of financial support. All the biological parent needs to prove is biology and maybe relationship. Pictures and witnesses can establish the relationship. Even that isn't required since children are often sent to live with relatives they've never met. The stepfather has no legal standing. His being married to the mother is irrelevant unless he married her before the birth of the child.
Grandparents are biologically related. The stepfather truly has the least rights. His having a day-to-day relationship and a stable home doesn't trump biology in the eyes of the court. It has always been mindboggling how the courts provide stepparents with no rights over the children living under their roofs, from education to medical decisions, but that's the way it is.
Yup. Step-parents virtually have no rights. Some states are starting to give some rights, but for the most part, a step parent is a legal stranger.
There are times I feel this is wrong, and other times i feel it's right. It really depends on the situation of each family. There's a differenc between a bio dad who is uninvolved because he doesn't want to be with his child, and a bio dad who is uninvolved because bio mom makes it difficult
For instance, if a step-parent is truely the only dad the child knows, and bio dad is off not giving a damn, then why shouldn't the step dad have more rights especially when bio dad had opportunity and chooses to not take them?
Or how bout the flip side where mom with step dad makes visitation tough for bio dad, but he does what he can and visits as much as he can and yet is alienated by mom to the point where being a part of his child's life is extremely difficult. In that case, if the mom dies, should the step-parent get custody or should dad finally get his chance to have a relationship with the child that was kept away from him?
There is no cookie-cutter "one fits all" answer.
Of course, another interesting aspect to discuss is if step-dad and mom were to get a divorce (and there is a legal bio dad who is in the picture) years after getting married when the step dad was an active part of the child's life.
Last edited by BostonMike7; 07-11-2014 at 10:23 AM..
Heres the deal guys ok. What is in the best interests of the children trumps any existing laws. For years we have seen laws passed relating to custody, care and protection of children that has violated constitutional law, civil rights etc all in the name of "what is in the best interests of children".
My point on this is, legally, logically etc biological parents have priority over non-blood. But don't rest on that because the trump card is "What is in the best interests of children".
Dont believe me? Explain to me how your children can be taken from you by the state without proof or hearing first? Or how one parent can kidnap or commit parental alienation and not go to jail?
The information given by the o.p is that biological father is an unwed father of a child born out of wedlock. A whole different legal creature then a married and divorce parent. Would the father have to file affiliation paperwork to establish legal paternity and establish his legal rights in court if step father challenges for custod
Heres the deal guys ok. What is in the best interests of the children trumps any existing laws.
Only in your mind in this scenario. You can keep repeating it all you want, but it doesn't make what you're saying true. Courts strongly believe children have a right to be with their biological parents and that it's in the child's best interests to be with the biological parent. If he isn't a danger via CPS standards, he is going to get custody over the stepparent. This child has a father and it's not the stepparent.
Quote:
Originally Posted by hawaiian by heart
The information given by the o.p is that biological father is an unwed father of a child born out of wedlock. A whole different legal creature then a married and divorce parent. Would the father have to file affiliation paperwork to establish legal paternity and establish his legal rights in court if step father challenges for custody.
We're not talking about an infant. Maybe you live in a strange state where unmarried fathers of older children are treated significantly different than divorced fathers, but the biological parents never being married is irrelevant in most states. His paternity is already established by his name being on the birth certificate. That's a legal document.
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