Child Custody in de facto relationships

K.Stephens

Registered
Joined
Aug 30, 2014
Messages
37
Reaction score
1
Hi,
Hoping someone can help me out—I did contact two separate family law firms in Georgia but they said I'd need to pay for information :/

In my story a young unmarried woman falls pregnant, after giving birth she leaves the daughter with the father and moves away. The father forms a relationship with another woman and they live together in a de facto relationship for the next 6 years.

This woman wants to leave the father but she loves and cares for the young girl. The father has become quite mean spirited over the years and doesn't want the woman to have any custody rights.

So my question is, does the woman have any custody rights to the child even though she is not biologically related?

Thanks so much for any advice.
 

jclarkdawe

Feeling lucky, Query?
Super Member
Registered
Joined
Jan 18, 2007
Messages
10,297
Reaction score
3,859
Location
New Hampshire
The answer is maybe. Starting question is state law and what is the practice of the family courts. If you've got a step-parent with extensive contacts with the child, the one who went to the parent-teachers meetings, the one who took the child to T ball, et cetera, then you've got a chance.

It's a difficult fight but most courts will go with what is in the child's best interest. One place you want to look is guardianship cases. And it's a quirky area of law. One extremely unusual feature of cases involving custody of children is letting the child go in and talk with the judge with no attorneys or other grownups in the room, In other words, one-on-one. Big gamble for everybody, but also a great way of getting the kid to come up with some honest answers.

Lots of individual scope for this to play out, and a lot of law that you probably want to slide over.

Jim
 

waylander

Who's going for a beer?
Super Member
Registered
Joined
Oct 24, 2005
Messages
8,279
Reaction score
1,567
Age
65
Location
London, UK
What outcome do you want for your story?
 

MaeZe

Kind Benefactor
Super Member
Registered
Joined
Jun 6, 2016
Messages
12,775
Reaction score
6,482
Location
Ralph's side of the island.
...
It's a difficult fight but most courts will go with what is in the child's best interest. ...
If this is in the US, sadly this is not necessarily true. Unless the child is in danger from the father, biology alone is prioritized as 'in the best interest of the child' in US courts if the father seeks custody. If the stepmother had officially adopted the child, then the courts would look at both parents when granting custody.

My brother's wife died suddenly. He had sadly not gotten around to adopting her daughter. Even though he'd been her father for three years, the grandmother sued and was awarded custody.

The fact the mother in your story abandoned the child would be another complication when it came to adopting the child. There are some technical hurdles to prove abandonment.
 

jclarkdawe

Feeling lucky, Query?
Super Member
Registered
Joined
Jan 18, 2007
Messages
10,297
Reaction score
3,859
Location
New Hampshire
MaeZe -- There's not only a lot of variation between the states here, but between the individual judges. Your story is consistent with many cases. It's not across the board however. There is a presumption in favor of biological relatives, but like all presumptions, it can be rebutted.

What one judge thinks in a child's best interests might be different than another. For example, which is better -- to go to church every Sunday or take your kid to Little League? If all other factors are equal, which is in the child's best interests?

There's not usually anything to stop her from filing for custody. After that, it's a battle to show why she should have custody, especially as she has no biological ties to the child.

And as far as your brother goes, I knew one judge in New Hampshire, recently retired, who never granted a man custody. Not surprising when you knew his background.

Jim Clark-Dawe
 

JJ Litke

People are not wearing enough hats
Super Member
Registered
Joined
Dec 8, 2013
Messages
7,997
Reaction score
4,475
Location
Austin
Website
www.jjlitke.com
But the scenario is that they have a de facto relationship, which I'm assuming means they are not married. I can't imagine any court giving custody of a child to someone with no legal connection and no biological connection unless they came up with some really solid reasons in favor of it. Like the father died or there was evidence of abuse. Anything short of that and I'd have a lot of trouble suspending disbelief.
 

MaeZe

Kind Benefactor
Super Member
Registered
Joined
Jun 6, 2016
Messages
12,775
Reaction score
6,482
Location
Ralph's side of the island.
MaeZe -- There's not only a lot of variation between the states here, but between the individual judges. Your story is consistent with many cases. It's not across the board however. There is a presumption in favor of biological relatives, but like all presumptions, it can be rebutted.

What one judge thinks in a child's best interests might be different than another. For example, which is better -- to go to church every Sunday or take your kid to Little League? If all other factors are equal, which is in the child's best interests?

There's not usually anything to stop her from filing for custody. After that, it's a battle to show why she should have custody, especially as she has no biological ties to the child.

And as far as your brother goes, I knew one judge in New Hampshire, recently retired, who never granted a man custody. Not surprising when you knew his background.

Jim Clark-Dawe

I agree wholeheartedly that men getting custody of their children is seriously skewed in the courts. That is a separate issue.

I'm not sure 'never granting a man custody' includes a non-biological parent vs a biological one when no adoption is involved. I can see a grandmother winning a custody case against a father. But non-biological parents have few if any rights to child custody if contested by a biological parent. There may be exceptions if the man is a criminal or a serious drug or child abuser.

If you have some evidence other than courts preferring mothers over fathers, I'd be interested.

Can non-biological parents be awarded custody?
A biological parent will almost always have superior rights to child custody. However, there are certain situations where a non-biological parent can be given custody rights by the court, even over the objections of the biological father or mother.

When May Non-Biological Parents be Awarded Custody?

A non-biological parent may be awarded custody if:

The court finds the biological parent unfit.
The court determines that living with the biological parent is not in the child's best interests.
The court determines that the biological parent is not available due to desertion, death, or other reasons.
As for the child's best interest, the first sentence notes that the "biological parent will almost always have superior rights."

Looking at another source:
New York’s highest state court recently granted “legal parent” status to a woman whose same-sex partner was the biological parent of the child. The woman will have the same rights as a biological mother or father to seek visitation or custody rights in the event that their relationship ends. The court limited the ruling, however, to situations where there is a formal civil union or same-sex marriage. It refused to extend such rights to instances where a person is acting, for all purposes, as a parent but does not have the formal status of a parent.

Keep in mind a lot of these Google first page links are attorneys wishing to promise things that might make you hire them,
such as this one. But I thought the court case they cite might be worth a look.
A new precedent setting Appellate Court decision in August 1998 may have opened the door for non-biological fathers to claim custody or visitation rights even when the biological parent is not unfit. With this Appellate decision, the court has perhaps belatedly recognized changing lifestyles and the need to make decisions based on the best interests of the child.

Before this decision last year, a biological parent who had not abandoned his or her child and who was not deemed to be unfit, had a paramount right over all others concerning custody.
But it turns out this case applied to a man who was married to the mother at the time she gave birth to the child, and it wasn't revealed the man was not the biological father until later. There is some case law, I believe, that a non-biological father who raises the child for a period of time believing he is the father, can be responsible for child support if he later divorces the mother and finds out he isn't the biological father.
 

K.Stephens

Registered
Joined
Aug 30, 2014
Messages
37
Reaction score
1
Thanks everyone for the replies.
Yes, I'd like the story to lean in favor of the father, so it makes it harder for the de facto mom to leave as she is emotionally tied to the daughter. This is all great advice because I didn't want to finish the story and find out that, yes the de facto mom could have gotten custody at any time quite easily.
And just to throw in another twist, the father is not actually the biological father :D But that isn't revealed until the end of the story and actually works out in favor of the de facto mom.
Thanks again.