My son's ex-fiance' may be going to jail or prison for theft. They have a 1 1/2 yr old daughter together and my son wants to get full custody of. Does he wait until she goes to court and gets possibly sentenced or should he start with the custody proceedings now? If he waits, what will happen to their daugther if she does get sent to prison? He is not listed as her father on her birth certificate but we know from a home DNA test that she is his.

Home DNA testing gives him no legal rights. At this point the mother of the child could place the child with someone during her period of incarceration.

Your son NEEDS to go to Court, get a declaration of paternity based on Court-ordered and recognized DNA and then ask for custody. If the mother is, of course, in jail/prison, he will get physical custody. If he wants physical custody AFTER she is released he needs to prove she is unfit AND a danger to the child.

He will have a little bit of difficulty claiming she is unfit if he has done nothing to establish legal paternity or gain custody in 18 months.

He needs to act quickly!