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jk101 · Mar 24, 2012, 05:01 PM

Hi. This is probably a very complex situation but would really appreciate any help.

I am making a film about a wrongfully convicted man who is seeking custody of his daughter once released.

The situation is; Gary was wrongfully convicted of murder and sent to prison whilst his girlfriend was pregnant with their first child. After 14 he has been released after evidence appeared to prove his innocence.
His now 14 year old daughter lives with her stepdad, as her mother married some years after the conviction but has since died, leaving the stepdad with custody of the girl.

Gary now wishes to obtain custody of his daughter given he can establish a good relationship with her.

My questions are:
1. Is it even possible for Gary to get custody of his biological daughter?

2. What issues will Gary face in trying to get custody of his daughter now he is out of prison a free and innocent man?

3. What official processes must he go through?

Thank you for reading and I look forward to any generous help on this topic :-)

John

Fr_Chuck · Mar 24, 2012, 05:45 PM

1. Step Dad could not have legal custody unless he adopted the child. So it would be easy to get a court order to take the child from him. Custody of the child would have went to a family member.

2. Yes, at this point he would have gotten a pardon and/or his record erased, so there is nothing that can be held against him, so yes he would have the right to file for custody.

3. Since you did not say Step Dad adopted, we will say he has guardianship given him by another family member to allow him to keep child. At that point the dad would have to start contact with child, often though counseling for first meetings, and start with visits, then extended visits.

4. At this age, the desires of the child will be listened to, but since the father still has full rights to his child, a step dad with no legal rights to child, will not have must to go on.

5. he would file in family court to over turn any legal paper work given to step dad. If there is no legal paper work, he would file to have the child returned to him at once.

ScottGem · Mar 24, 2012, 06:31 PM

I will assume that the mother died while he was still in prison. The first thing he needs to do is find out why the daughter is with the step-dad. Whether there was any legal actions giving him custody.

Then he gets an attorney to see what the best strategy to gain custody is. I would start with visitation and then work towards custody.

jk101 · Mar 24, 2012, 07:27 PM

Thanks guys, that's very helpful.
Would it be unrealistic to say the stepdad adopted the child after her mothers death, given they were married for about 5 years?

Cheers
John

kcomissiong · Mar 24, 2012, 08:53 PM

It would be more realistic that the fathers rights were terminated due to the length of the initial sentence, which cleared the way for the step-father to adopt. Thatwould have happened while the mother was alive.

jk101 · Mar 24, 2012, 10:01 PM

Thank you once again, very helpful. I really appreciate it!

jk101 · Mar 24, 2012, 10:06 PM

So, given that the child was adopted by her stepfather due to the length of the sentence, would the biological father be able to obtain custody once he was proven innocent and released?

ScottGem · Mar 25, 2012, 05:53 AM

Overturning an adoption is very difficult. Even in circumstances like this. I would say it's unlikely to happen. But, under these circumstances, I would say that a court would recommend that he be given some level of visitation.

That's why it is very important that the step father's legal relationship be established before anything else is done.

AK lawyer · Mar 25, 2012, 06:27 AM

Originally Posted by jk101

...
Would it be unrealistic to say the stepdad adopted the child after her mothers death, given they were married for about 5 years?
...

We are constructing a plot for a fictional film, right? Assuming that, it could have happened. But it would be more common (and less complicated, legally) for the stepdad to have adopted the step-daughter when the mother was still alive. In either case, it would be plausible, assuming that legal notice was given to the biological father.

By-the-way, this plot contains many of the elements of the classic novel Silas Marner. I recommend that you read it before you produce your film.

Fr_Chuck · Mar 25, 2012, 06:28 AM

Yes, the step father would have had to adopt before the mothers death,

The issue of the sentence being over turned, would give the father some power in court, Since the adoption was done though taking his rights away over something that was proven false. Thus the adoption was based on false info. It would still be hard but not completely impossible. The father would be given at least liberal visitation.

AK lawyer · Mar 25, 2012, 06:35 AM

Originally Posted by Fr_Chuck

...
The issue of the sentence being over turned, would give the father some power in court, Since the adoption was done though taking his rights away over something that was proven false. ...

I agree, overturning the adoption would be unlikely at best. Unless, of course, the step-father or the mother had some part in the wrongful conviction. That, of course, might add an interesting plot element.

JudyKayTee · Mar 25, 2012, 07:34 AM

I've read this same question before, but I can't find it.

Does anyone else remember?

I thought it got moved from Law to creative writing (or something similar) the last time around.

ScottGem · Mar 25, 2012, 07:46 AM

I went back to read the OP. I admit I didn't read this as a fictional scenario at first. But if it is, the OP was upfront about it.

However, if the OP is asking for help in determining the validity of a plot twist, it does slightly change the responses.

It depends on how the story wants to treat Gary as how to portray this. If the story wants to favor Gary and have him come out the happy ending, then the step-father never adopted the child and retained custody only because no other family members of the mother or Gary came forward to claim the child.

If more realism is wanted, then the likelihood is the step-father adopted the child. That the adoption went through without Gary's input because of his conviction. And that the step-father (legal father) will agree to let Gary be a part of the child's life without court involvement.

JudyKayTee · Mar 25, 2012, 08:37 AM

I didn't mean it was inappropriate. I meant that it's been asked before and I recall a number of responses, plot suggestions and so forth.