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The Phoenix · Apr 17, 2009, 04:44 PM

I am a single mother to an infant son. I dated his father briefly (6 months) and we had gone our separate ways by the time I found out I was pregnant. I did share the news with him and gave him the option to be involved or not... but I did not feel it was my place to make the decision for him by not telling him. He said that he had since reconciled with his ex-fiance and he would rather not be involved. However, a major curve ball was recently thrown at me when to my GREAT surprise I found out he has been married since 2005! I have actually spoken directly with his wife who now knows about his extra marital affairs and his son. He still claims he wants nothing to do with his son and I have not spoken to either one of them for several weeks and as much as I just want to carry on as if nothing has happened... I fear that left unaddressed, in the future there will be custody battles in the event something should happen to me. Even though he is not on the birth certificate (in California if you are an unmarried parent the father has to sign a declaration of paternity for his name to be listed as the biological parent) what rights does he have should something happen to me? My will has left my son with a legal guardian and funds have been established to cover both my son and his named caregiver in the events something should happen to me. Will the state automatically track down the father? (on all my state paperwork I listed the fathers name) Also what complications will occur should I marry and my husband want to adopt my son?

I guess in a nut-shell what I would like to know is... Should I take the legal steps/precautions to have the father terminate/relinquish all rights? Which he had previously agreed to do... This would entail him filing a declaration of paternity, then I would file a petition for custody. This doesn't mean I would deny visitation should he ever change his mind... I just want to insure that there are not an future custody obstacles in the arenas of future adoption and in the events I should pass.

Thank you for your time.

ScottGem · Apr 17, 2009, 04:52 PM

First, your provisions in your will are invalid. Second, you aren't likely to get his rights terminated.

If, at any time, as long as there isn't a legal father, he decides to step up and claim paternity, he will get it. This also means, that, if something should happen to you and he claims paternity, then he will get custody despite what's in your will.

And courts are very reluctant to grant TPRS, genrally they will only do so to clear the way for an adoption or if the parent represents a dange to the child, neither of which appears to be the case here.

Finally, if you ever need to apply for public assistance, they will insist on finding the father.

My problem is I'm not sure how to advise you. If you go for custody, you will have identify the father. If you don't, then you have to trust that he will not try to gain custody even after your death.

The Phoenix · Apr 17, 2009, 05:02 PM

If I marry and my husband want to adopt my son will I have to go through the courts and involve the biological father? Also, how is my will invalid?

ScottGem · Apr 17, 2009, 05:07 PM

Originally Posted by The Phoenix

If I marry and my husband want to adopt my son will I have to go through the courts and involve the biological father?

Yes, an adoption requires the consent of the biological parents. Also an adoption is a legal process that has to be approved by a judge.

Originally Posted by The Phoenix

Also, how is my will invalid?

Because you cannot legally leave custody to someone other than the bio parent as long as that parent is alive.

The Phoenix · Apr 17, 2009, 05:16 PM

Where can I research wills... I find it hard to believe that a child can't be left to a legal guardian of my choice when there is no other parent in the picture. So should I pass and my son is 10yrs old, has never met his father... he will be sent to live with him? Who will orchestrate this? No one knows the father... not one friend or family member knows his name nor how to get in touch with him.

cdad · Apr 17, 2009, 06:11 PM

Originally Posted by The Phoenix

Where can I research wills...I find it hard to believe that a child can't be left to a legal guardian of my choice when there is no other parent in the picture. So should I pass and my son is 10yrs old, has never met his father....he will be sent to live with him? Who will orchestrate this? No one knows the father...not one friend or family member knows his name nor how to get in touch with him.

A child is NOT a piece of property. You can make recommendations but its no longer up to you where the child actually goes ( as far as a will is concerned ). That's why you can't will a person away. What you need to be doing is establishing custody and child support at this time. They should get a DNA test at the time when court is establishing him as the legal father. Then should you marry and your spouse wishes to adoption you have someone to take the issue to ( the bio dad ).

ScottGem · Apr 18, 2009, 05:22 AM

Originally Posted by The Phoenix

Where can I research wills...I find it hard to believe that a child can't be left to a legal guardian of my choice when there is no other parent in the picture. So should I pass and my son is 10yrs old, has never met his father....he will be sent to live with him? Who will orchestrate this? No one knows the father...not one friend or family member knows his name nor how to get in touch with him.

The ability to do this ended with the 14th amendment. Remember, the one that repealed slavery? A person is not property, therefore you cannot will a person to someone.

Your son would not be "sent" to his father, but the father could claim him. If the father learned of your death, he could go to court establish his paternity and take custody of the child. Whatever provsion you made in your will about custody would be ignored.

The Phoenix · Apr 27, 2009, 12:23 PM

Thank you... I understand what you mean... clearly a person is not property. However all responsible parents establish in their wills a caregiver to take care of their minor children in the events they should pass. As I have done in my will (which was prepared by a lawyer)

Based on the input I have received from this site, I have started the ball rolling to establish full legal and physical custody of my son, and thankfully the father has agreed to cooperate. Then I will hopefully, one day be able to file a TPR in then events I remarry and my husband would liket to adopt my son. The father has asked (I have no intent on answer his question) if we can file a court order for no child support... my research shows that this is not possible... true?

stevetcg · Apr 27, 2009, 01:16 PM

Originally Posted by The Phoenix

Thank you.....I understand what you mean...clearly a person is not property. However all responsible parents establish in their wills a caregiver to take care of their minor children in the events they should pass. As I have done in my will (which was prepared by a lawyer)

Based on the input i have received from this site, I have started the ball rolling to establish full legal and physical custody of my son, and thankfully the father has agreed to cooperate. Then I will hopefully, one day be able to file a TPR in then events I remarry and my husband would liket to adopt my son. The father has asked (I have no intent on answer his question) if we can file a court order for no child support....my research shows that this is not possible...true?

If you agreed to it he could get no support ordered... but I cannot imagine any reason you would do that. Having the support order in place gives him extra incentive to allow an adoption down the road.

ScottGem · Apr 27, 2009, 01:21 PM

Originally Posted by The Phoenix

Thank you.....I understand what you mean...clearly a person is not property. However all responsible parents establish in their wills a caregiver to take care of their minor children in the events they should pass. As I have done in my will (which was prepared by a lawyer)

This is done in case BOTH parents die in an accident. Its also done in the hope that the NCP doesn't challenge it. But a challenge will not hold up.

The Phoenix · Apr 27, 2009, 01:36 PM

Thanks... how do I get a "Real expert" on this site? All my research has stated the child support can only be waived by a judge during your custody hearing, but it is unlikely to happen even if both parties agree the final say is up to the family court to see if the party seeking custody can financially stand on their own. Even in cases where they can, the court believes the child is intitled to financial support from both biological parties.

So where does a girl find an expert on this site? :)

ScottGem · Apr 27, 2009, 01:40 PM

Umm, what makes you think you aren't getting the right answer?

The problem here is that courts are afraid that mothers will seek public assistance if they don't get support. But the law, in most states allows a custodial parent to request that support be dropped. The court will make the decision to agree.

But as Steve pointed out, you want to reserve that as leverage to get him to relinquish so the adoption can go through.

The Phoenix · Apr 27, 2009, 01:55 PM

Ok great thank you! I was responding to his comment about asking a real expert on this site... was note sure how to tell! :)

I agree and will use it as leverage... why should I believe he will honor his word... no matter how much he cooperates. He is still the same man who failed to inform me he was married. Can't wait to see what the judge has to say about it! What a mess... I still can't believe this is my situation?!

ScottGem · Apr 27, 2009, 01:59 PM

Originally Posted by The Phoenix

I was responding to his comment about asking a real expert on this site...was note sure how to tell! :)

Oh, that's just a disclaimer in his sig. Steve knows his stuff and if he did give some less than accurate advice, someone would correct him.

The Phoenix · Apr 27, 2009, 02:06 PM

Thanks again! I appreciate everyone's help... this is unchartered territory for me and definitely not a situation I ever thought I would be in... and am looking forward to finding resolution soon.

The Phoenix · May 28, 2009, 03:34 PM

Is it possible to file for a TPR (termination of parents rights) prior to obtaining sole legal and physical custody? My research says no... but the father of my son seems to think so. I have explained that obtaining a TPR is next to impossible unless it is to clear the way for adoption. Thanks!

rookie231 · May 28, 2009, 04:58 PM

The father of your son is wrong, and he's just thinking it will relieve him of child support obligations. Having seen single moms who went without the support, I encourage you to establish child support, your child deserves it!

ScottGem · May 28, 2009, 07:22 PM

The father is just whistling in the dark. He's not going to get a TPR especially if it means terminating support.