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NikkiSloan
06-02-2013, 01:04 AM
I've read that Florida leans heavily toward favoring a biological parent in custody matters and my story takes place in Florida, so that's why I'm looking for responses specific to Florida (if possible).

A married couple with two biological children have marital problems. The wife has an affair, gets pregnant by him, has a third child while still married. The husband might suspect the third child isn't his, but it's never openly discussed. Two years later, the couple divorces and the woman marries the father of her third child. She gets shared custody, but the third child lives primarily her and her second husband. The two older children are in their teens and stay primarily with their father.

Ten years later, the woman tries to get her ex-husband to give up his rights to the third child so her second husband can adopt him - they want to move out of state. Two older kids are now adults. The first husband resists giving up custody of the third child and the woman dies.

In Florida, can a divorced parent give up their rights and allow the other parent's new spouse adopt?

If the second husband wants to continue 'shared custody' or claim sole custody of his biological child (now 12 years old) after the woman has died, does he have to prove paternity and take this to court?

Can the first husband (ex-husband and presumed biological father) agree to allow the second husband (actual biological father and new widower) to keep primary custody without doing the whole paternity testing and court process?

Hope this isn't too confusing and thanks in advance!

cornflake
06-02-2013, 10:57 AM
I don't believe this is particular to Fla., but someone with more specific knowledge may come along and know more.

To the first, yes.

To the second, if he adopted the child, he's the legal parent if the other parent dies.

To the third, yes, afaik. The courts are mostly interested in what's in the best interests of the child - which generally includes as little disruption as possible. If the kid has been living with the couple and the woman dies and he hadn't been adopted but his father (the first husband, who would be legally presumed to be the father) says that's fine, he should stay with his stepfather in the home he's been living in, I can't think of a reason a court wouldn't be happy with that - except if the kid voiced an alternate opinion.

Debbie V
06-03-2013, 07:53 PM
If all parties agree the child should be with husband two, I don't think there is an issue.

The rest is confusing me a little. Does husband one give up the child or not? When?

NikkiSloan
06-09-2013, 07:41 PM
If all parties agree the child should be with husband two, I don't think there is an issue.

The rest is confusing me a little. Does husband one give up the child or not? When?

Sorry for the delayed response!

Husband One doesn't want to give the child up. But when the ex-wife/mother dies, he doesn't want to put the kid through the trauma of challenging his paternity (and all the related smearing of his mother) - so he is willing to let the boy stay with Husband Two who he hadn't allowed to adopt the kid but has been a good father thus far.

Just to explain why I'm asking ... I'd read a few articles (online) about Florida courts refusing to give rights to a non-biological parent (eg. step parent) and refusing to allow the bio parent to 'give up' custody - but those were cases where the step parent sued to take custody from the biological parent. In one case, it sounded like the best interest of the child was secondary to the biological standing of the adult.

Thanks!

NikkiSloan
06-09-2013, 07:44 PM
I don't believe this is particular to Fla., but someone with more specific knowledge may come along and know more.

To the first, yes.

To the second, if he adopted the child, he's the legal parent if the other parent dies.

To the third, yes, afaik. The courts are mostly interested in what's in the best interests of the child - which generally includes as little disruption as possible. If the kid has been living with the couple and the woman dies and he hadn't been adopted but his father (the first husband, who would be legally presumed to be the father) says that's fine, he should stay with his stepfather in the home he's been living in, I can't think of a reason a court wouldn't be happy with that - except if the kid voiced an alternate opinion.

Thank you!

ULTRAGOTHA
06-10-2013, 12:57 AM
What do you want to have happen? If the legal father and the bio/step father both go to court and agree the bio/step dad can have permanent custody and the child advocate and child are fine with that I don't see why a Family judge would have a problem. Even in Florida.

I do wonder why legal dad is OK with this now when he wasn't before? But it's up to you as a writer to convince me this makes sense. ;)

Lyra Jean
06-10-2013, 01:05 AM
You can always do a paternity test. They do it on Maury all the time. Although, the oldest child I've seen on there was six.

Legal father could just be disagreeable to make it hard on the ex-wife. Now that she is dead he "doesn't care" anymore. So maybe he was just using the kid as a pawn to hurt his ex-wife.

WeaselFire
06-10-2013, 05:56 PM
In Florida, unless the first husband contests the boy staying with the second husband, there's no issue for the courts. In your description, there's no reason for either man to be going to court since the current situation will simply continue.

What do you want to happen? Is this a point of contention? Does it matter in your book?

Jeff

NikkiSloan
06-17-2013, 07:58 PM
In Florida, unless the first husband contests the boy staying with the second husband, there's no issue for the courts. In your description, there's no reason for either man to be going to court since the current situation will simply continue.

What do you want to happen? Is this a point of contention? Does it matter in your book?

Jeff

Thank you for the FL specific view!

In a shared custody situation where the mother dies, wouldn't the natural thing be that the child would return to his biological father - in this case presumed to be the first husband?

And would it normally be up to the 2nd husband to 'prove' his rights (to the courts) by showing his own paternity of the boy?

Anyway, that's how I'm hoping to play it in the beginning.

Yes, it matters and is a point of contention. At the time the mother dies, they live close enough to facilitate shared custody - but the mother and 2nd husband plan to move away, taking the boy with them. That's why he was fighting giving up his rights.

I want a struggle where each father (and each is his father in his own way) has something to win and something to lose whichever way it goes.

And it matters more if I get it wrong.

I want the second husband to think he'll lose the boy (who is actually his bio son and who he has raised - mostly) unless the first husband cooperates ... and to think his only way to fight to keep him is to publicly embarrass the boy (and maybe mess with his own political ambition) by proving his paternity. A little bit of a King Solomon thing - a competition between two good men where each man must weigh his happiness against that of the son.


But I also want to be able for husband 1 to save the day by allowing the boy to go with husband 2 who the boy has always seen as his dad... without dragging it through the courts.

Make sense?

NikkiSloan
06-17-2013, 08:02 PM
You can always do a paternity test. They do it on Maury all the time. Although, the oldest child I've seen on there was six.

Legal father could just be disagreeable to make it hard on the ex-wife. Now that she is dead he "doesn't care" anymore. So maybe he was just using the kid as a pawn to hurt his ex-wife.


Ouch! Good reminder that I'll have to be careful not to make Husband 1 look like too much of a self-centered jerk in his desire to retain contact with his only son.

NikkiSloan
06-17-2013, 08:09 PM
What do you want to have happen? If the legal father and the bio/step father both go to court and agree the bio/step dad can have permanent custody and the child advocate and child are fine with that I don't see why a Family judge would have a problem. Even in Florida.

I do wonder why legal dad is OK with this now when he wasn't before? But it's up to you as a writer to convince me this makes sense. ;)

Hope I'm up to the challenge of making the shift believable and neither man look like a total jerk.

Short answer is that first husband's focus is now on the boy's happiness instead of feeling like the ex-wife is doing things just to hurt him by taking his son away. The mother only shortly before her death began work on Husband 1 to give up his rights... complete refusal on his part was mostly a knee-jerk reaction.