when the father on the birth certificate isn't the biological father - Mothering Forums

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#1 of 8 Old 03-24-2009, 12:42 AM - Thread Starter
 
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Just wondering, for a friend. He has one child with his ex girlfriend. The other child was born while they lived together and his name is on the bc. He pays child support for both children and has the children 3 overnights per week. The children are 3 and 4. When ever he wants to change any custody or discuss anything the mother says she will make it so that he never sees the younger child again. We are in California. I think he is the legal father unless the biological father wants to fight for the child (he's not around). Is this true? Written anywhere that I can show him?
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#2 of 8 Old 03-24-2009, 01:12 AM
 
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Not sure what you are saying. Is he the bio father of both or only the older one? If he's not the father how is his name on BC? Even if the other father is nowhere to be found I think he still has rights. The only way your friend would have full rights to the children is if he legally adopted them. Then he can fight for full, partial which ever he chooses. Tough situation. But he should speak to a lawyer no matter what. There may be loop holes if he is financially supported them both. Pretty nice guy to do this if they are not his own.
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#3 of 8 Old 03-24-2009, 09:12 AM
 
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It depends on the laws in your state. In my state, in order for a man to get on the BC if the couple is unmarried, both parties have to sign a "Recognition of Parentage" form. DH did it in the hospital for DS because we were not married at the time of his birth. My understanding is that once this form is signed, it is pretty hard to undo. Unless another man steps up and fights for custody, if you signed the form, you are the father. And responsible for support, entitled to custody.

So if your state has a similar form, he might be set, for the most part. He should definitely consult with a lawyer. It is really unfair of the child's mother to use the child as blackmail. Your friend should not have to live in fear of losing his son. And how sad for the child if she she were to make good on those threats.

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#4 of 8 Old 03-24-2009, 10:36 AM
 
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In my state, if a man makes it on to the birth certificate, he is the legal father (because he's either the husband or he and the mom signed a voluntary paternity acknowledgement) and it's a very hard thing to undo, and will only be undone in situations where the harm to the child is minimal (think: the baby is still very young and won't remember, or the guy on the BC split and the child has never had a relationship with him, or a stepfather wishes to adopt and the BC father is unfit or wishes to relinquish his rights, etc.).

Your friend has three overnights a week with a child who is old enough to be harmed by Mom just deciding Dad isn't the father anymore. In this instance, DNA probably wouldn't make a difference. If the biological father wanted a relationship with his child now, a judge may award him some visitation (maybe...and probably not a whole lot at first) but your friend would still be the father.

I'm not really familiar with CA laws; I suggest your friend get in touch with someone who is.

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#5 of 8 Old 03-24-2009, 11:40 AM
 
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Quote:
Originally Posted by ProtoLawyer View Post
In my state, if a man makes it on to the birth certificate, he is the legal father (because he's either the husband or he and the mom signed a voluntary paternity acknowledgement) and it's a very hard thing to undo, and will only be undone in situations where the harm to the child is minimal (think: the baby is still very young and won't remember, or the guy on the BC split and the child has never had a relationship with him, or a stepfather wishes to adopt and the BC father is unfit or wishes to relinquish his rights, etc.).
Yeah, this.

As a teen, my (male) cousin married and had a baby girl. His wife cheated on him and had a baby boy. Cousin's name is on the birth certificates of both. They divorced shortly after.

When the mom got preg by another guy, and it was clear she didn't have the ability or desire to have 3 little kids, my aunt (cousin's mom) petitioned for custody. She was given the little girl (her bio grandchild) and the little boy (her grandchild only because his birth certificate says so).

At the time, my aunt asked her lawyer if it was possible to get custody of the new baby (product of her ex-DIL and a new boyfriend). She was concerned that the new baby would also be neglected. Her lawyer said she had no "claim" on that baby, because cousin had already divorced the baby's mom, and so his name was not on the birth certificate.

She raised them until cousin was mature enough to be a dad. Both kids are teens now, and live with my cousin. They see their mom occasionally. Neither the mom nor the boy's bio dad have ever tried to take custody (of either kid).
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#6 of 8 Old 03-24-2009, 11:59 AM - Thread Starter
 
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Quote:
Originally Posted by pinksprklybarefoot View Post
It depends on the laws in your state. In my state, in order for a man to get on the BC if the couple is unmarried, both parties have to sign a "Recognition of Parentage" form. DH did it in the hospital for DS because we were not married at the time of his birth. My understanding is that once this form is signed, it is pretty hard to undo. Unless another man steps up and fights for custody, if you signed the form, you are the father. And responsible for support, entitled to custody.

.
Yes, this is the situation. He really cannot see a lawyer (nooo money at all) so I was hoping to find something written down that would give him some confidence when dealing with the mom. I'll ask if she signed something at the time of the birth.
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#7 of 8 Old 03-24-2009, 07:16 PM
 
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California Family Code Section 7575 says (in part):

(b) (1) Notwithstanding Section 7573, if the court finds that the
conclusions of all of the experts based upon the results of the
genetic tests performed pursuant to Chapter 2 (commencing with
Section 7550) are that the man who signed the voluntary declaration
is not the father of the child, the court may set aside the voluntary
declaration of paternity unless the court determines that denial of
the action to set aside the voluntary declaration of paternity is in
the best interest of the child, after consideration of all of the
following factors:
(A) The age of the child.
(B) The length of time since the execution of the voluntary
declaration of paternity by the man who signed the voluntary
declaration.
(C) The nature, duration, and quality of any relationship between
the man who signed the voluntary declaration and the child, including
the duration and frequency of any time periods during which the
child and the man who signed the voluntary declaration resided in the
same household or enjoyed a parent-child relationship.
(D) The request of the man who signed the voluntary declaration
that the parent-child relationship continue.
(E) Notice by the biological father of the child that he does not
oppose preservation of the relationship between the man who signed
the voluntary declaration and the child.
(F) The benefit or detriment to the child in establishing the
biological parentage of the child.
(G) Whether the conduct of the man who signed the voluntary
declaration has impaired the ability to ascertain the identity of, or
get support from, the biological father.
(H) Additional factors deemed by the court to be relevant to its
determination of the best interest of the child.

(More at: http://www.leginfo.ca.gov/cgi-bin/di...file=7570-7577)

If the baby was born in the hospital and they weren't married, the hospital should have gotten him to sign a declaration of paternity (the state pays the hospital to get those signed for unmarried mothers). If his child support is court-ordered, they would have signed one when they established that. If they have ever had a court order for custody/visitation, they probably signed one there, too.

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#8 of 8 Old 03-24-2009, 08:23 PM - Thread Starter
 
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Thank you! Thank you! I didn't know where to look, because I'm not even sure what to call it, but that sounds like what he needs to hear. There is no court ordered anything-- for visitation or CS and he's never talked to a lawyer, but the baby was born in a hospital, so it sounds like a declaration of paternity was likely signed.
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