Who'd get custody?

He'd have to show plausible reasons for wanting to prove paternity. It differs state to state as I understand it, but with the 17 year old's father signing away custody to the baby,in the eyes of the state HE is the presumed father with parental rights. If he signs them over to his daughter, then those rights would go to her. In order for a third party to try to claim paternity, he'd first have to show a judge the plausibility of the claim (i.e.--sexual relations with the biological mother and proof of the presumed father's sterility), get the judge to sign an order for DNA testing, and even then would have to go through a custody hearing and/or trial to gain custody of the infant. It would be a fairly long,drawn out process.

As best I can tell...

Everything mscelina said, plus--

You indicated a fairly well to do, perhaps prominent in the community, family.

If so, family lawyers could make the whole custody thing happen, so that she got the girl, without "the courts" getting involved. It would just be a Lawyer shows their family friend, the judge, the paperwork, and how she's got financial stability from her inheritance, etc. and paperwork "gets done".

Of course, now, if real father had video and testimony... maybe from when Mom went off with him to have the child...? And wanted to dredge up all the family dirt...? I don't know.

Let's assume an American setting, because that's the law with which I am most familiar. I am not an attorney.

Any number of states still have some version of the chattel laws on the books. Florida is one; Washington is another. In very simplistic terminology, this basically says that the wife and children of the marriage belong to the husband. Presumption of paternity even when confronted with overwhelming proof. Washington allows collection of child support even when it has been proven the child is not biologically related to the husband - he is the husband therefore he is the father. Period (well, period depending on how good your attorney is).

The biological father would have to prove paternity and then, in chattel states, probably sue the husband and/or petition the state for paternal rights. The last is, IIRC, fairly straightforward in WA, just file your proof and request at the courthouse and wait for processing.

Further complicating the matter are the legal laws concerning proper establishment of custody and psychological parent. Custody is not always automatic unless both parents were married at the time of birth, in which case the parents are automatically given joint custody until such time as a divorce or separation requires the custody be revisited. Unmarried parents must sue each other to establish proper custody; neither parent has custody without the lawsuit, the one who resides with the child merely has "possession". A psychological parent is one who is not biologically related to the child and perhaps not legally related either, but has taken on the duties and role of a parent for long enough that the court deems it in the child's interest to maintain that parental status - whether the psychological parent likes it or not (in some states this was the legal basis for suing a stepfather for child support).

Finally, we're down to the machinations and idiocy that is family court. Typically, whomever has possession of the child, keeps possession of the child and has the nastier attorney wins, regardless of any other circumstances. Imagine if someone kidnapped a child and then, five years later, the court said, "Well, the child has acclimated and it might upset them to change their living arrangements after so long, therefore... custody goes to the kidnapper."

Welcome to our legal system.

Hooked me; great story, JA.

juneafternoon said:

Rich husband and wife have a 17-year-old daughter that was conceived back when they were teenagers. Shortly after, the husband has his tubes tied, so he’s probably sterile, but only he and the wife know this.

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I don't know the answer to your question, but I just wanted to point out that men don't have falopian tubes, women do. Women "get their tubes tied," men get vasectomies.

Did you also post this in the story research forum? That would be a great place to get some answers, too.

This is not the appropriate forum for this; I'm moving this to novels.

CasualObserver said:

In very simplistic terminology, this basically says that the wife and children of the marriage belong to the husband. Presumption of paternity even when confronted with overwhelming proof. Washington allows collection of child support even when it has been proven the child is not biologically related to the husband - he is the husband therefore he is the father. Period (well, period depending on how good your attorney is).

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Absolutely, that's how it works. Husbands are considered the father regardless of paternity. I agree with the rest of your post too, especially about the courts view of "psychological parent" but didn't want to repost the whole thing.

There is almost no way the court would allow the 18-year-old to take custody of the baby, even if the father didn't want it. He'd have to be proven an unfit parent, and if that were the case, it's more than likely he'd be given several chances to clean up his act by Child Protective Services. If he failed, or the child was in immediate danger, the child would be placed with adult relatives or in foster care.

Technically, yes, an 18-year-old is an adult but would likely not be selected as a first (or second, or third) choice option for custody of a baby not her own. Stable environments are an important factor in custody, and a teen with a new apartment and a new job, for example, probably wouldn't be considered stable.

If a teen wants a baby, she's pretty much going to have to have one herself.

Might work for a book, though. You've got an interesting premise loaded with conflict, that's for sure.

I got custody of my step son shortly after his father and I divorced. I was barely 20 and he was about 7.

The mother had had her rights terminated due to abuse and then disappeared. Not even the cops could find her.

The father just wasn't ready or able to raise the child on his own.

I was the only mother that the child remembered and was best able and most willing to take care of him, so the father signed custody over to me. No court battle necessary. The mom can't fight it because all her rights are terminated. The grandmother, however, has threatened.

I took her threats seriously at first, but once my son had lived with me over a year I no longer worried. Courts like to leave kids in the possession of the person they are with, so long as they are happy and well-adjusted and the person in possession can show that they are able to keep things that way.



Oh, and guys do "get their tubes tied"...it's just not fallopian tubes, it's the vas deferens (sp?) - hence the name "vasectomy". Sometimes they are cut and tied or singed, sometimes they are clamped.

ETA: Medical records are privileged info and hard to acquire by outside parties. Besides, just because he has had a vasectomy doesn't mean that there's no way he's the father; they (VERY) occasionally reverse themselves...things grow back. Also, the father could simply sign the child over to his daughter by using a form called Power of Attorney. That document can be printed from any computer, and once notarized, it allows a person to act in parental stead on just about anything...enrolling a child in school or a hospital, for instance. No court or lawyers necessary at all. It's good until revoked by written notice (or on some forms, a set date).

Devil Ledbetter said:

There is almost no way the court would allow the 18-year-old to take custody of the baby, even if the father didn't want it. He'd have to be proven an unfit parent, and if that were the case, it's more than likely he'd be given several chances to clean up his act by Child Protective Services. If he failed, or the child was in immediate danger, the child would be placed with adult relatives or in foster care.

Technically, yes, an 18-year-old is an adult but would likely not be selected as a first (or second, or third) choice option for custody of a baby not her own. Stable environments are an important factor in custody, and a teen with a new apartment and a new job, for example, probably wouldn't be considered stable.

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We could make this work believably for a book, though. The husband can be proved unfit through abuse and not a legal relative by blood or marriage (the mother died, therefore the marriage is ended). JA says there are no living relatives, which makes the sister not only the documentable psychological parent but also the next-of-kin. Sister has her inheritance from her mother, presumably significant bucks to stage a good court fight and provide a stable home life. So long as the sister doesn't leave the baby with the husband and sue for custody without residing with the child, this could be quite believable.

juneafternoon said:

Would the vasectomy be in any of the husband's medical files?

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Yes, it might be, but since medical records are private, they would not come out unless he brought them out himself. From your OP it sounds like he didn't want to go out of his way to prove the baby was not his, he just ran off.

Also (and I work in medical records, btw) clinics are not legally bound to keep adult medical records for more than 7 years. So if the man got a vasectomy soon after his 17 year old daughter was born, those medical records might be destroyed.

I hope that helps.

Moved to story research. G'luck, JA, sounds like a great situation

juneafternoon said:

CO (sounds like a jail acronym ) - Yes, the girl's inheritance is significant, so she wouldn't be residing under the bridge. But she wouldn't even get in a fight--the husband would renounce his paternal rights to the baby over to her. She's an adult, which is why I thought that might work. If anyone can think of any reason why it wouldn't, please tell me! The entire point of this is to make sure she DOESN'T have to go to court for the custody of the baby. A family lawyer could just draw up some sort of an agreement and have both sign, no?

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Yeah, I can think of a way that wouldn't work. *chuckle* One cannot give their parental rights to another person; they can voluntarily terminate them, but not give them away as gifts. She will have to be awarded parental (or guardianship) rights on her own accord.

A family lawyer... yes and no. The family court judge has the power to waive an agreement reached by both interested parties if the judge deems that arrangement to be detrimental to the welfare of the child. But what someone else further up said is probably what you're looking for; the family is prominent and probably connected, so she has her high-powered attorney talk to the judge over drinks at the country club, "It'd be such a shame if these photos and the whole sordid story came out... Mr. Sampson's a pillar of the community and all that..." Voila, agreement signed by all parties and stamped by a judge.

CasualObserver said:

We could make this work believably for a book, though. The husband can be proved unfit through abuse and not a legal relative by blood or marriage (the mother died, therefore the marriage is ended). JA says there are no living relatives, which makes the sister not only the documentable psychological parent but also the next-of-kin. Sister has her inheritance from her mother, presumably significant bucks to stage a good court fight and provide a stable home life. So long as the sister doesn't leave the baby with the husband and sue for custody without residing with the child, this could be quite believable.

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Yes, absolutely that could work well for fiction.

I dunno if anyone mentioned this but I thought typical wills involved all the money going to the surviving husband/wife (and only if/when both passed would it go to any children or other relations). No point in handing a kid the money, even at age 18, if they have a living parent to support them... (generally speaking)

Bahamutchild said:

I dunno if anyone mentioned this but I thought typical wills involved all the money going to the surviving husband/wife (and only if/when both passed would it go to any children or other relations). No point in handing a kid the money, even at age 18, if they have a living parent to support them... (generally speaking)

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Yes, I was thinking about the Will situation. Wife doesn't have to leave anything to Husband in Will; provided it's solely her property to pass along (and not marital property), she can gift everything to child. However, a minor is likely unable to collect, so the safest bet is to set up a Trust (and this can be done in the Will).

Juneafternoon,

Where does your story take place? In US? Brazil? Someplace else?

My parents live in Puerto Rico where the inhertiance laws are different than described on this thread. If a husband or wife dies property must be split amongst the living spouse and the children. The living spouse is entitled to 50% and the other 50% is divided equally among the children.

I realize the setting of your book probably isn't Puerto Rico, but I brought up the above point because it's important for you to research the laws where your story takes place.

She could probably legally adopt him, particularly if the father was cooperating. I know someone who was raised by a (much) older sister; the older sister legally adopted her baby sister after her parents died.

Though by federal law, you have to be 21 to legally adopt in the US, I do believe.

-- Leva