I've read many of the responses in this forum related to the rights of a step-parent. Some even cruel enough to use anger from their own situation where someone is taking advantage of the situation and hate for their spouses ex. I would also agree that it is a shame that all sides seem to think about themselves in family marital situations. However, there is way more to this subject. Being analytical and attempting to set aside emotions for a minute allows one to think, see and behave more clearly. There is only one thing that matters when it comes to a custody issue and that is the best interest of a child.

I am in California and have been married for 6 months to a woman with a 2 year old child. I have given up a 6 figure income to bring up this child. Who cares you might ask? I do. The biological father of this child refused to sign the birth certificate. When he found out that the mother of this child, my wife, had gotten re-married, he literally got married himself. He has never ever offered any amount of money towards support. I'm a male and frankly I find this man to be a coward to not accept his parental responsibilities and even better attempt to harass my wife prior to us getting married. Luckily, he's a little afraid of me. I'm the unknown quantity.

The reality is, I know at this point that if something should happen to my wife I loose all rights to this child. Even if I am the one who has given the major amount of parenting when it comes to bringing up this child, if she dies, he looses everything. His biological father has many issues such as having been arrested for cocaine possession, as well as, has been open about hearing voices. I will do everything legally possible to keep this man from having any more rights and I am going to be starting a foundation to see if there are any laws that can be affected. This child deserves the best and I have dedicated myself to ensure this happens. Any comments of a positive nature would be appreciated. Any negative ones will not be justified.

If the Father has no signed Birth certificate or signed any birth acknowledgment he is not the child's legal Father either and as the same rights you do. Which at this point is none. Your foundation may be well intended but I dont see it being much of a success and could be used in some of these bitter battles between parents we read here everyday

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Your best advice legal advice does not come from internet message boards, Police, friends, family, your neighbors etc.It comes from an Attorney. Advice given here should not replace legal advice from a qualified Attorney.
www.parentnook.com

If you are asking a moral question, then yes, certainly the best interest of the child should ALWAYS come first - and that includes choosing people who will make good parents BEFORE making children with them, as well as understanding that the legal contract of marriage, all religious implications aside, exists in no small part to ensure that children have two parents. Operating outside of that legal setup means that in order to secure the same protections, additional steps must be taken (since the process of divorce, again intended in no small part to protect children) isn't available when operating outside of the system set up to provide those protections.

When two people are married, the husband is presumed to be the father. When creating children outside of marriage, that presumption no longer holds true and if there is a suspected father, morally, of course he SHOULD sign the birth certificate, be a stand up guy, support his children emotionally, financially, academically, and in all other respects. In reality, many won't and thus the mother must initiate a paternity proceeding to have the father legally established. Without this step taken, the child has no legally recognized father, the father has no rights to visitation or custody, and the father additionally has no LEGAL obligation to provide a penny for child support (noting again that what is MORAL and what is LEGAL are two very different things).

If a father has been legally established, and that father presents some danger to the child (like the mental health issues that you mention), that can go a long way towards a court deciding that the father has no business being around the child and if, as in your situation, the mother has a husband willing to adopt the child (become the second parent who would be legally responsible for the child), then the court may look upon such an adoption favorably, even to the point of granting the adoption against the wishes of the father. Usually if the father objects, there's a huge wall to overcome, as without extinuating circumstances, the presumption is that the father is the best choice for his offspring - but WITH some of these circumstances, that presumption CAN be overcome. It's VERY important when looking at the issue to understand that the presumption of biological father as BEST is the key - and there's a lot of sociological, anthropological, criminological, and psychological research that plays into this presumption - much more than can be addressed here, but understanding that this is the DEFAULT position is crucial.

The other side of that coin is that the mother CHOSE this person to be a father, so whatever shortcomings or issues he has, courts will consider that at one time she has already given him a stamp of approval and the court will want to see that something about him has significantly changed SINCE she gave that stamp (for example, if he had NO signs of mental illness then, but does now, or never did drugs until after they had created the child, but now is a user with a growing criminal history). If those things aren't true, then the court has to assume that the mother, knowing of any of these issues, STILL considered the father to the "father material" and that weighs heavily in such cases and the presumption of the biological father as best REMAINS. (In other words, courts, less so than mothers, don't look at fathers as just sperm donors - the assumption is that the mother at some level found him suitable to make the child WITH, unless as noted, substantial changes occurred with the father AFTER the conception). And of course, the same applies to mothers; fathers who find themselves paired with a mother who runs into drug, crime, mental health, or other issues can and should seek custody similarly, and will encounter the same burdens to overcome to remove a mother from a child's life - which similarly can, and does, happen.

The laws and processes that you are looking for, to allow step-parents to bring their non-biological children under their legal family if the father isn't a fit parent, already DO exist (although courts and parents often don't see eye to eye on what "fit" means). But what many people who are NOT on the bench fail to consider is that ours is a country whose very fundamentals are based on government staying OUT of individual choices wherever possible, and that while the "rights" of fathers poses a challenge, the choice of the mother to MAKE those persons fathers factors in just as heavily; and it is THAT choice that sets the presumption of father as best in motion. That some parentss choose persons who turn out NOT to be good co-parents to their children is indeed unfortunate (yet our species seems to have survived to date regardless), but courts to a great degree give those decisions by the parents a LOT of weight, and are ready and willing to allow a parent to be less then stellar parent, so long as that parenting doesn't cross into dangerous or neglectful (at which point the "protection of the child" kicks in and the court looks to see if another, suitable, adult, such as a step parent who has shown willingness to legally become a stand-in and has signaled so by marrying the original parent and creating that legal contract, is available and willing to become the new parent in place).

Ultimately, unless legislation passes that either mandates "pre-parent" testing by prospective parents (which is what the whole dating process is supposed to address), or outlaws the bearing of children outside of the legal protections afforded under the marriage contract, OR creates some other mechanism to provide the protections and processes entailed therein, this issue will continue to be a challenge, frustrate families, and put children through much more emotional and other forms of turmoil than any child should have to endure, but do, every day. There really isn't a way to legislate prevention of the making children with people who have no business being parents, so all that can be done is deal with the aftermath when those choices turn out to be very poor ones (and even if we made people submit to strenous testing before "allowing" them to become parents, that's no guarantee that any individual will be similarly predisposed to parenthood at any time in the future). So there IS a process for parental substitution, but it requires a great deal to overcome the INITIAL presumption that the initial choice to make a baby with someone shoudl be honored - that great deal including showing, more or less, that the parent initially chosen CHANGED after the choosing had occurred, or that circumstances that resulted in the creation of the child to begin with are no longer valid to a SUBSTANTIAL degree.

And finally, going back to our social structure; the broadest problem with this issue is that ours is set up, at a basic level, and supported by legislation, to produce children within a marriage which is supposed to last until "death do us part" to maintain family structure and stability for children to be raised into adulthood. That is the basic sociology of the family. Our system is NOT set up for people to be having children OUTSIDE of marriage and the protections inherent therein, nor is it set up for substitute parents to be around every corner. Human society for millenia had a mommy and a daddy raising children, and a new or different parent typically entered the picture only when mommy or daddy were dead (mommys often in childbirth, daddies often in war). It's only been the last hundred years or so that everyone is running around making babies out of wedlock or making babies and getting divorced and re-married with a LIVING co-parent still in the picture; and legislation, based on what people PROFESS to be their fundamental beliefs (even if their actions speak differently) simply hasn't caught up; and probably won't during any of our lifetimes.

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While pointers can be helpful, ultimately the number one lesson in any legal action is: don't take legal advice from books, family, friends, co-workers, police officers, grocery clerks, web sites, or people on legal message boards. The only person who can give YOU legal advice is YOUR attorney.

http://www.aardvarc.org

Actually, you never HAD any LEGAL rights to this child to BEGIN with. Therein lies the entire issue. I can ACT like the car in the garage is mine. I might even have the keys in my hand. I might really love that car. That in no way assigns ANY level of legal ownership or stake in the car, even if the car loves me back. I might wash it lovingly, polish it, clean it, take good care of it. But if it's not MY car, the owner can take the car and continues to enjoy legal ownership of that car, even if he doesn't really like it, want it, or have the same level of attachment to it.

__________________
While pointers can be helpful, ultimately the number one lesson in any legal action is: don't take legal advice from books, family, friends, co-workers, police officers, grocery clerks, web sites, or people on legal message boards. The only person who can give YOU legal advice is YOUR attorney.

http://www.aardvarc.org

First, I would like to thank aardvarc for taking so much time to provide such a fantastic write up to my Thread. Your points are well taken. Obviously, anyone can have children and I would wonder how many parents would fail a parenting test. From my perspective, this is the first child I have ever dealt with and in fact I have held off having children for the wrong reasons. The child we are speaking of was born out of wedlock and I used to be very closed minded in dealing with such issues. Both society and myself have regressed to the point that there is some acceptance of this issue.

The subject here is what is best for the child. Therefore, the parents are secondary as is step-parents and/or grand-parents. What is best for the child may start with who he/she calls "mommy and daddy." I am fortunate and thankful that I have the title of daddy as the child wishes. I did not ask for this title but I have earned it. It disgusts me that the biological father has been given visitation rights even though his main goal is to use the child to get back at my wife. His retribution is against himself and he desires to blame my wife for his own shortcomings. The judge and legal representatives barely gave the child notice prior to and the evaluation that was provided. As usual there is the "Moving in and moving out" of bodies through the system.

The question remains, "What is best for the child?"

I will respond further but have to leave to take the child to his gym class. Underdog I wish to thank you as well for your response however, the birth father according to the courts does have rights even though he doesn't wish or never has wanted to accept responsibility.

Your wrong on a point. Grandparents "do" have rights. In fact with no Dad (legal Father) the grandparents would have legal right to custody or any other blood relative. Once more "you" have no legal claim on child regardless of what child calls you! I know this I am a step Father the child's Father left my wife before she (the child now 12) was born. They were not married. No Father is listed on BC. She calls me Dad and am only Dad (Father) she has ever known. She knows she no my Biological child and is fine with this. From an emotional standpoint shes mine. Legally she is not. If anythng were to happen to my wife I could lose her to inlaws. Not likely but could. I understand your view but the laws exist to protect the child and parents rights. There is no one size fits all solution. "Step Parents" are often looked upon poorly. Look at the news, children's stories and recent films. Do not expect the view of most to change just because you and I are doing the right thing

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Your best advice legal advice does not come from internet message boards, Police, friends, family, your neighbors etc.It comes from an Attorney. Advice given here should not replace legal advice from a qualified Attorney.
www.parentnook.com

I suggest you contact an attorney to discuss your situation. This forum is currently sponsored by Roy Doppelt and you can find contact information on the banner advertisement above. Also, LawInfo’s Free Legal Resource Center has a variety of information which may be useful to you. You can find it here: www.resources.lawinfo.com.

As there is no one size fits all solution to the step-parent issue nor is the law clear in many cases. We are on our second attorney and have consulted a few others making sure the one we have is doing his best. Our first attorney was "Mr. Gung Ho we can take away the biological father's rights!!!" However, I was a bit suspicious of his intentions. He later proved to be that he had little interest in the case and whenever questioned about its progress he had to be reminded continuously what it was about. Not to offend anyone but thus far I'm a bit disappointed in the legal representation that is available for family law.

We consulted approximately 6 lawyers in all and only one has kept his word as it related to our original discussions with him. All the lawyers we interviewed said they had been involved with many cases where parental rights were taken away from biological parents. Business must be slow in some areas.

We also consulted with one attorney who said it was possible for us to go through the adoption process. He then recommended another lawyer who was more interested in our money than discussing real world cases and possible solutions. This is the first time in my life where I feel a bit out of the water so-to-speak. I have never found a problem I cannot solve. But this is the hardest ever. I knew I should have pursued that law degree.

I must say I am wonderfully surprised how great the responses have been and definitely appreciate the feedback. The only way to win in any issue is through educating one's self. We have been at this for about 3 months and have been to court one time. The one thing that is very clear is no one knows everything about this issue. This is not necessarily about my rights as a step-parent but more so the issue of responsibility to a child. I am willing to accept it but it seems others are still willing to use a child as a pawn in a petty game which is very very sad.

As far as the biological versus adopted parent I am very familiar with those types of issues since I was adopted myself. I have always believed that there has to be a solution to each problem. I have never seen it not be true. The only hope I have is that this child grows up well adjusted and happy. I wish this for as many children as possible. But I have to start with one. Thanks

The law is very clear and unwavering about one particular issue; that a step parent, sans completion of an adoption, is a legal stranger to a step child, no matter how close, how long they've been together, etc., and a parent, if alive and unless proven to be a threat or other MAJOR problem, will always take priority and retain rights to the child (as noted in Underdog's post). To treat the relationshp as anything OTHER than this reality, until an adoption occurs, only sets up every member of the family for intense emotional pain and disappointment. Think of it this way: we adults know that Santa Claus isn't real; yet, we ingrain in our children for as long as plausible, that Santa Claus exists, knowing full well that eventually the child will find out the truth. Their hopes and view of the universe will momentarily be skewed, they'll recover, and do the same thing to their children, operating under the theory that a few years of the pleasure of sharing Santa Claus with the child is worth the inevitable disappointment upon discovery of the ruse. Being a step-parent and acting like a parent is often along the same lines, only with MUCH bigger stakes - and is a situation where the unveiling or even forced imposition of the truth can neither be predicted nor controlled by the step-parent. Thus, it could be argued (and actually has been by some), that it is in the best emotional interest of the child for step parents to thoroughly understand the extent of what their role CAN be, and to not overstate or dupe the child into what is a potential minefield by NOT imposing or allowing the facade of parenthood to begin with.

My take on family law? Never listen to ANY attorney on ANY matter who professes to be able to predict what a court (the ONLY ones who can take away those rights) might or might not do. The more confident they act, the faster one should run. ALL that an attorney can do in ANY case is to work dilligently to gather and present evidence and arguements to the court, beyond that, attorneys cannot make ANYTHING happen. The attorney to be heeded the most is the one who rather than spouting how quickly they can solve a problem, instead starts off by enumerating the challenges faced by the case. THAT is the attorney who has looked at the overall case and not only understands the challenges but is willing to be open and honest with you about them BEFORE you've made numerous payments and gotten nowhere.

There are a GREAT many people out there who would agree with. In fact, I'd bet the MAJORITY of parties to most family law cases would. However, in their defense, one must remember that these are people who are versed in the law (whereas family members involved in the issue are versed in how they FEEL about the matter, and no matter how strong feelings are, they don't change the law), AND, these attorneys are being asked to step in AFTER the fact to clean up a mess that OTHER people have created. Family law attorneys are basically janitors asked to clean up messes while clients and families are often still in the process of creating them. As we've discussed thus far, often there ARE no clear cut answers, and cases often fall under the influence of MANY entities OTHER than attorneys, from psychologists, to CPS, to judges, to mediators, to GALs and others; all of whom have their OWN input to and impact on, the case.

__________________
While pointers can be helpful, ultimately the number one lesson in any legal action is: don't take legal advice from books, family, friends, co-workers, police officers, grocery clerks, web sites, or people on legal message boards. The only person who can give YOU legal advice is YOUR attorney.

http://www.aardvarc.org

REPLY CONTINUED....


A game of symantics. The termination of parental rights really isn't common (the focus for the last 5 to 8 years has been on keeping parents involved, getting them treatment, getting them parenting skills, doing whatever can be done BEFORE terminating rights), AND, when such termination occurs, it's often thanks to efforts of Child Protective Services or similar agencies, NOT thanks to work done by a privately hired attorney representing a parent. Those attorneys may have been INVOLVED in cases where parental rights were terminated, but the efforts of those attorneys most likely had very little to do with the outcome that emerged. Courts tend to terminate rights based on proven dangers to the child (criminal record, which CPS provides to the court, NOT the attorney), based on mental health evaluations (which are ordered by CPS and/or the court), or in cases where the parent is being incarcerated (the court gets those records themselves too). For cases where parental rights are terminated due to a claim of abandonment, a private attorney can often prove to be useful as far as getting things done, but generally speaking, CPS and parents themselves are capable of proving such an abandonment to the court's satisfaction on their own.

Don't feel bad; even attorneys with law degrees who specialize in family law loose their OWN children. Human relationships are the most complicated thing on earth second only to the functioning of the human brain, making law that addresses such relationships ANYTHING but an exact science (a ouija board could be about as predictable). With that said, adoption is the only way for you to be legally recognized as parent to this child, and until that happens you can't ever breathe the sigh of relief that you'll lead a "normal" parent/child life with this child (again, as Underdog pointed out). Unfortunately, the process in your case won't be fast, easy, or cheap. As I keep saying, it takes a LOT before a court will terminate the rights of a parent who WANTS to be in their child's life - even if their reasons for wanting to be so are less than honorable. If the father was eager to be rid of the child, the matter could be a relatively simple one (really, a lot of parents who don't have close relationships with their children are eager for adoption to occur, and will sign off immediately; because then they don't have to deal with the ex anymore, and more importantly for many, no longer have to pay child support). But in your case it sounds like the father is eager to remain attached to the child. This makes the issue infinately more complex and severely puts the odds of adoption at levels lower than I know you are hoping for.

__________________
While pointers can be helpful, ultimately the number one lesson in any legal action is: don't take legal advice from books, family, friends, co-workers, police officers, grocery clerks, web sites, or people on legal message boards. The only person who can give YOU legal advice is YOUR attorney.

http://www.aardvarc.org