Custody for Fathers With Presumed Parentage
Fathers who choose to raise children who are not biologically their own may have their rights challenged during custody battles. If a father does not have a definitive paternity test proving a biological relationship to the child, they may also establish paternity by one of the following:
- Being married to the mother at the time of the child's birth. A mother’s husband is automatically presumed to be the legal father of children born during the marriage. You might have to fight for custody if you fathered children when their mother was married to someone else.
- Adoption. Non-biological fathers may legally adopt children they helped raise or presumed to be their own to be granted custody.
- An Acknowledgment of Parentage. If a mother is unmarried at the time of their child’s birth, both parents may complete an Acknowledgment of Parentage to file with the state Department of Vital Statistics. This document establishes no other presumed, acknowledged, or adjudicated father besides the person seeking to establish parentage. If the form is executed correctly, it has the legal equivalent of a court order establishing parentage for the listed father.
Custody for Non-Biological Parents
Many different kinds of relatives may qualify as non-biological parents. If you helped raise a child but aren’t the child's mother or father, you may be able to assert your rights as a de facto parent. De facto parents may include the biological parent’s siblings, parents, grandparents, in-laws, aunts and uncles, or friends of the family, but also parents in non-biological family units (such as step-parents or same-sex partners).
To petition the court as a de facto parent, you must have:
- Lived with the child for some time
- Taken care of the child consistently (“care” can include feeding, housing, driving to or from school, and providing counsel or support)
- Provided care for the child without expecting payment
- A bonded, dependent, or otherwise parent-like relationship with the child
- Evidence that the child's biological or adoptive parent(s) supported your relationship and continual care of the child
- Held the child out as your own
- Demonstrated that continuing your parent-like relationship is in the child's best interest
Custody for Relatives Who Are Not De Facto Parents
As of 2021, it’s much more difficult to obtain custody if you are a non-parent who does not qualify as a de facto parent. It’s also more challenging to get visitation if the child’s biological parent refuses to let you see the child. However, there are circumstances where a non-parent may be granted custody or court-ordered visits.
As a non-parent, you can only be granted custody of a child if:
- The child is not currently in the parent(s) physical custody. This establishes that the child is not actively receiving their parent’s care or is already used to living with people other than their parents.
- The parents are unfit. It will be up to you to prove the parents cannot care for the child. This may include parental drug use, alcohol addiction, neglect, or a history of child abuse.
- You’re a fit parent. The court will want proof that you can support the child financially, emotionally, and logistically before awarding custody.
- You’re the best parent the child could have. Once you’ve established that the child’s parents are unfit and another living situation is necessary, you’ll have to prove that your care is the best possible option. There may be several otherwise fit parents seeking custody, and you will need to prove why your home provides the most benefit to the child's growth and development.
If you’re unsure of your rights as a non-biological parent, you should speak with an experienced child custody attorney as soon as possible. At the Law Offices of Molly B. Kenny, we answer all of your questions and guide you through the legal process, ensuring your concerns for the child’s well-being are heard. Call us today to arrange a private consultation, or use our online contact form to have us get back to you.