[stevetcg]

The background: I have been dating my girlfriend, A, for the last 22 months. She fled an abusive marriage to Z 2 years ago and has had no contact in 18 months or more. No divorce has been filed and he seems to have disappeared. She has a son, B (M33mo) who is biologically, legally and named after Z. There is no custody and support order, there has been no support and no indication that he is wanted by Z. We also have a daughter, C (F9mo) whom I am the biological and legal father of. We all (me, A, B and C) live together in Florida. A's mother M lives nearby and is very involved with the kids. I have raised B as my own child and he only knows me as Daddy. He and his baby sister are very close.

A gets hit by a bus and dies.

The questions:
1) what happens to B? Does M automatically get guardianship because Z is absent? If Z can be found is custody forced on him? Could it be fought if he were to suddenly show interest?

2) Do I have any rights? Could I GET rights were M to get guardianship/custody? Would that require anything special such as us living together (anyone want to sell a duplex?) or us getting married (I am going to need a drink before this is over... and lots of therapy)

3) Does the fact that I am the biological father to B's sibling have any affect on any of this?

4) M and I would very much be in agreement on what is best for B. Obviously she would need a lawyer. Would I need my own or could her lawyer represent both of us?

5) Would anything change these answers, such as a custody order, will, legal separation?

Please note that A is alive and well. This is just for information so that M and I can convince A that hiding and hoping Z never shows up again isn't the way to go.

Thanks for your time and happy Thanksgiving

[cdad]

The background: I have been dating my girlfriend, A, for the last 22 months. She fled an abusive marriage to Z 2 years ago and has had no contact in 18 months or more. No divorce has been filed and he seems to have disappeared. She has a son, B (M33mo) who is biologically, legally and named after Z. There is no custody and support order, there has been no support and no indication that he is wanted by Z. We also have a daughter, C (F9mo) whom I am the biological and legal father of. We all (me, A, B and C) live together in Florida. A's mother M lives nearby and is very involved with the kids. I have raised B as my own child and he only knows me as Daddy. He and his baby sister are very close.

A gets hit by a bus and dies.

The questions:
1) what happens to B? Does M automatically get guardianship because Z is absent? If Z can be found is custody forced on him? Could it be fought if he were to suddenly show interest?

2) Do I have any rights? Could I GET rights were M to get guardianship/custody? Would that require anything special such as us living together (anyone want to sell a duplex?) or us getting married (I am going to need a drink before this is over...and lots of therapy)

3) Does the fact that I am the biological father to B's sibling have any affect on any of this?

4) M and I would very much be in agreement on what is best for B. Obviously she would need a lawyer. Would I need my own or could her lawyer represent both of us?

5) Would anything change these answers, such as a custody order, will, legal separation?

Please note that A is alive and well. This is just for information so that M and I can convince A that hiding and hoping Z never shows up again isn't the way to go.

Thanks for your time and happy Thanksgiving

You are on very very shaky ground here. For 1 thing Z might get custody of BOTH children. You need to get a lawyer right away if mom has passed. You might not have any legal standing because from what you have said she was still legally married. ( what were you thinking ? ) In some states if a man and woman are married then if a child is conceived during the marriage then the husband is the presumed and legal father of the child regardless of the bio dad. Get to a lawyer quick.

[stevetcg]

You are on very very shaky ground here. For 1 thing Z might get custody of BOTH children. You need to get a lawyer right away if mom has passed. You might not have any legal standing because from what you have said she was still legally married. ( what were you thinking ? ) In some states if a man and woman are married then if a child is concieved during the marriage then the husband is the presumed and legal father of the child regaurdless of the bio dad. Get to a lawyer quick.

That's bad. I signed a acknowledgment of paternity and I am on the BC if that matters.

[ScottGem]

If you are on the because you are likely to retain custody of C. You have no legal rights to B. On the other hand, Z or a blood relation, would have to show up to change anything.

I think your best bet is to move to adopt B.

[stevetcg]

If you are on the b/c you are likely to retain custody of C. You have no legal rights to B. On the other hand, Z or a blood relation, would have to show up to change anything.

I think your best bet is to move to adopt B.

Ultimately that is the plan. It's just taking longer than I would like because A prefers the "hide and hope" technique of conflict resolution.

[ScottGem]

So A has not been hit by the bus yet? Then marry her first. That will help speed the adoption.

[cadillac59]

This is like an exam question on California's Certified Family Law Specialist's exam.

Allright, where do I begin? First let me say my analysis is under California law and is only offered as a possible approach Florida might take, but not necessarily, so of course check it all out with a Florida attorney.

Caliddad mentioned losing custody of C to Z. That's not going to happen. It's true that Z is a presumed father of your child due to him being married to A, but you are the legal father having signed a declaration of paternity and being on the birth certificate. In any contest between you and Z over who's C's legal dad (which you know is unlikely to ever happen) you win: You're the bio-dad, have the equivalent of a judgment of paternity going for you (the declaration of paternity) and the only one with any actual parental contact. Z is a complete stranger to C.

As to B, Z is conclusively presumed to be the legal father if he were married to the mother at the time of the child's conception and, assuming that is true, it's too late to challenge that presumption since more than 2 years have passed since the child's birth (arguably you don't even have standing to challenge the presumption, if it applies, but there is some room to debate that point). If the child were conceived before their marriage (or during a period of separation) the conclusive presumption would not apply and you might be able to challenge Z's status as legal father arguing that since you took the child into your home and held the child out as your own (which itself gives you a presumption of paternity) you should be deemed the legal father, even though you have no biological connection to the child (we have an appellate case in California where this actually happened and the non-biological father prevailed).

There's a possibility of terminating Z's parental rights due to abandonment (no contact with or support of the child > 12 months) which, if all else failed, could open up the door for adoption.

As to your specific questions:

1. No. There is no such thing as "automatic guardianship"- guardianship has to be requested in a petition for guardianship and be ordered by a judge. Z would be entitled to custody (it cannot be forced on him) subject to the analysis above re: your status as a possible presumed father. If Z wanted custody it could be fought as part of a guardianship yes and a proposed guardian would likely prevail due to Z'a abondonment of the child.
2. You obviously have rights to custody of C, as stated. As to B, it depends on the analysis above (whether Z has a conclusive presumption of paternity due to the child being conceived during the marriage). Certainly you could immediately apply for (and likely get) a temporary guardianship regarding B if A were to suddenly die. In a contest between you and M over a guardianship you would likely win anyway since you are a defacto parent of B having taken on that role for a substantial period (22mo>).
3. Yes, being C's legal father helps in establishing a guardianship (or possible custody if otherwise available) in that the courts are loath to split up siblings, even half-siblings without a compelling reason.
4. A lawyer cannot represent both you and M due to possible conflicts of interest.
5. A will won't matter nor a legal separation. A custody order is unlikely to matter either since there is no request at the moment on Z's part to see B.

[cadillac59]

I hope that the info was helpful.

These facts presemt a classic case for a temporary or permanent guardianship, if not adoption. In the event of your girlfriend's death, you'd be able to come forward pretty easily to argue you should be the guardian because you've taken on the role of dad for the bulk of the child's life and he sees you as his dad. Now, if the bio-dad reappeared and suddenly wanted to come back into the child's life (and this sort of thing has happened many times before) what would probably happen is the bio-dad could possibly allowed some access time, like weekends or something like that. And the really weird thing that could happen is you might end up as technically the child's guardian but wind up sharing the child with the bio-dad almost like a co-parent (kind of like a same-sex marriage type of thing, wink wink)! Locally (the San Francisco Bay Area where I live and practice) I've seen judges create what they call a "limited temporary guardianship" where the non-parent shares 50-50 physical custody with a parent and shares joint legal custody as well. I personally think this is a bizarre result but if it works for the kid I figure, hey whatever, it's OK with me.

I think this may be why people sometimes get confused over grandparents rights. So often grandparents are guardians because they've had their grandkids dropped off in their laps only to have the parent llater reappear and want the kid back. So a guardianship gets set up because grandma has become a defacto parent of sorts and wants to raise the child and custody ends up being shared just the same as you'd see in a custody order between parents. It's almost like the court's have created a hybrid between a parental custody order and a guardianship without any statutory authority. I've had several attorneys shake their heads and say, "I can't believe he (the judge) did that!" But, no one is going to bother challenging the matter on appeal.

[stevetcg]

This has been extremely helpful, thanks. Not so much in the originally intended manner - convincing A that waiting around to file for divorce isn't the best course - but for my peace of mind and edification.

I know your answer is based on CA law, but like you said, I cannot imagine FL being much different.

As for Z ever reemerging - I'm pretty sure M would not be thrilled with that... and lets just say that there are a lot of deep swamps here in FL. :-D Seriously though, Z is not really a concern here... but hit by bus situations are almost always worst case. I was actually included in a meeting at work one day which had the title "Steve Gets Hit By Bus". If I hadn't worked for a bank, I would have thought I was going to get whacked. :-D

thanks again!

[stevetcg]

To pose a follow-up question (let me know if this should be its own thread... )

You stated "As to B, Z is conclusively presumed to be the legal father if he were married to the mother at the time of the child's conception and, assuming that is true, it's too late to challenge that presumption since more than 2 years have passed since the child's birth (arguably you don't even have standing to challenge the presumption, if it applies, but there is some room to debate that point). If the child were conceived before their marriage (or during a period of separation) the conclusive presumption would not apply and you might be able to challenge Z's status as legal father arguing that since you took the child into your home and held the child out as your own (which itself gives you a presumption of paternity) you should be deemed the legal father, even though you have no biological connection to the child (we have an appellate case in California where this actually happened and the non-biological father prevailed)."

B was conceived prior to A and Z getting married. They married while A was pregnant, Z's name is on the B/C. A and B left before B's first birthday. Do I have a case to claim B as a legal child now, even though A and Z are still married (technically) and A is alive and well?

Im not sure I read that right though... but if true, you would make me SO happy. If I had a dollar for every time A or I have said "I wish B were yours/mine for real" I would buy you a new Cadillac. :-D

[cadillac59]

To pose a followup question (let me know if this should be its own thread...)

You stated "As to B, Z is conclusively presumed to be the legal father if he were married to the mother at the time of the child's conception and, assuming that is true, it's too late to challenge that presumption since more than 2 years have passed since the child's birth (arguably you don't even have standing to challenge the presumption, if it applies, but there is some room to debate that point). If the child were conceived before their marriage (or during a period of separation) the conclusive presumption would not apply and you might be able to challenge Z's status as legal father arguing that since you took the child into your home and held the child out as your own (which itself gives you a presumption of paternity) you should be deemed the legal father, even though you have no biological connection to the child (we have an appellate case in California where this actually happened and the non-biological father prevailed)."

B was conceived prior to A and Z getting married. They married while A was pregnant, Z's name is on the B/C. A and B left before B's first birthday. Do I have a case to claim B as a legal child now, even though A and Z are still married (technically) and A is alive and well?

Im not sure I read that right though... but if true, you would make me SO happy. If I had a dollar for every time A or I have said "I wish B were yours/mine for real" I would buy you a new Cadillac. :-D

Do you have a case to claim B as your legal child now even though A and Z are still married and A is alive and well? Yes. You sure do in California.

The fact that B was conceived before A and Z were married makes a tremendous difference. Had the child been conceived during their marriage you would not be able to challenge the status of Z as legal father because more than 2 years have past since the child's birth. This is an application of what we call the "conclusive" presumption of paternity in California (Family Code section 7540). However, since the child was conceived before the marriage this presumption doesn't apply and instead a different presumption applies (under Family Code section 7611(a)) that I refer to as a simple marital presumption (think of it as a kind of being on a lower level compared to the 7540 presumption). This presumption is not subject to a 2 year limit to challenge it.

Because you received B into your home and held him out to all the world as your son, you also have the benefit of a presumption of paternity (Family Code section 7611(d)). You're what I call a "7611(d) dad". Because these two presumption conflict, we look to Family Code section 7612 to resolve them and decide who is the legal father. 7612 says that in resoving the conflict between competing presumptions of paternity under Family Code section 7611 the presumption which on the facts is founded on the "weightier considerations of policy and logic" controls. (Don't you love that language? ). Now what that exactly means in each case is up for grabs but in cases like yours, where you are the only dad the child has ever known and bio-dad is totally out of the picture, you should win. Doesn't that kind of make sense? As I said previously we have case law in California where, in a case similar to yours, a non-biological dad (what some call "social dad") who had taken the child into his home and held the child out as his own prevailed against the bio-dad (who was married to but separated from the mom when the child was conceived)and was found to be the legal father. (Steven W. v. Matthew S. (1995) 33 Cal. App. 4th 1108; see also Librers v. Black (2005) 129 Cal. App. 4th 114 (trial court erred in finding that a man who asserted Section 7611(d) presumed father status lacked standing to bring paternity action to assert that status because he was not child's biological father)) .

The point is in California you would have an excellent chance of establishing yourself as B's legal father and this is probably what I would recommend you do if you were my client. It would be far easier than trying to terminate parental rights and adopt. And it would be a premanent solution to your problem, unlike a guardianship which is often just a stop-gap measure (not always but guardianships don't have the finality to them that a finding of parentage does).

Of course you're in Florida so you're going to need to talk with a Florida attorney and keep your fingers crossed that Florida would follow California's approach to this situation.

[stevetcg]

Do you have a case to claim B as your legal child now even though A and Z are still married and A is alive and well? Yes. You sure do in California.

...

Of course you're in Florida so you're going to need to talk with a Florida attorney and keep your fingers crossed that Florida would follow California's approach to this situation.

You are possibly my favorite person in the world right now! This news is second only to A telling me she was pregnant with C.

I do believe I will be in the market for a good FL lawyer come Monday morning.

Thank you for everything and god bless.

[cadillac59]

I wanted to just add one comment that I thought might be helpful to keep in mind.

Sometimes in these kinds of cases strictly applying the statutory law can lead to odd results that just don't seem right. In those few cases where that has occurred the courts have carved out an exception to the law by using what some have called a "constitutional override." Here's a great example of a case where that happened and one in which I think it was totally justified: Sally and Jim (not their real names-- I'm just reciting the facts from memory) were engaged to be married and Sally was pregnant with Jim's baby. Before the wedding, Sally and Jim and a fight, broke up, and called off the wedding. Not wasting any time, Sally met someone else and married him and thereafter promptly gave birth to Jim's child. Now everyone agreed it was Jim's child, there was no doubt about that.

After the child's birth Sally and her husband allowed Jim to visit now and again but later changed their minds about it and told him to get lost; they were a happy little family now and didn't want Jim around. Well, Jim thought, "NO WAY!, that's my son!" He got a lawyer and sued to establish himself as the legal father. But the trial judge said sorry Jim, you lose. Why? Well the judge reasoned that since Sally's husband was a "presumed father" of the child, having been married to the mom at the time of the child's birth, and since Jim had no presumption of paternity going for him (he was not a 7611(a) dad because he had never had a chance to take the child into his home and hold the child out as his own) Jim had no standing to challenge the husband's claim of paternity. Now that was a correct and literal application of the statutory law.

There is something about that result that just doesn't seem right. You know it seems crazy and almost everyone would agree that there is no way the law can produce that sort of result. It just seems unfair! But yet it was in accord with the way the law is written.

Jim appealed and fortunately for him the appellate court came to the rescue and found that even though the law appeared to dictate that result, it would be unconstitutional to deny Jim the right to prove his entitlement to the status of legal father under these facts. And that's because of the historical rights recognized in several Supreme Court decisions of a biological parent to actually be a parent.

So, even if the law would seem to preclude a person for establishing himself as father, there can be a fall back argument that has constitutional underpinngs.

[cadillac59]

You are quite possibly my favorite person in the world right now! This news is second only to A telling me she was pregnant with C.

I do believe I will be in the market for a good FL lawyer come monday morning.

Thank you for everything and god bless.

Hey thanks, I'm flattered by the compliment. But as you know, FL may have a different approach (if you say to your FL lawyer, "hey, that's the way they do things in California" you might get the reply, "they do A LOT of things different in California!).

Good luck.