custody question

[demarco36]

Hello, I have an odd and somewhat hypothetical question about custody. Maybe someone could help and give me some good insight into this.

man and woman are married. they seperate for a short time but never legally file for divorce. the wife comes back to the husband and confesses that in the time apart she had an affair. during that affair she became pregnant with the guys baby. Husband decided to stick it out and raise the baby. 2 years later the mother passes away and the biological father files for custody. in the past, and without the husband knowing, the mother filed a suit for child support and paternity test which was granted. In the two years the real father only saw the kid a few times and only paid child support twice. Are there any legal ways that the husband can keep the child and raise him and prevent the actual father from getting custody?

Thanks for any help...

[TC]

I'm guessing that the bio father would be awarded custody unless he elected to relinquish rights so that stepdad could adopt. 

I personally just don't see any other outcome.

TC

[demarco36]

Ala.Code 1975 ? 12-15-301 

Any option under abandonment??

[TC]

I'm not familiar with that code.  I live in Colorado.

You will have to get a take on that from a Bama native...but again, my gut tells me that the bio Father is going to be given every opportunity to take custody of the child.  I may be wrong, but I doubt it.

See what others have to say.

TC

[livealittle]

what does the child's birth certificate say?


In AL, if you are married, the husband's name goes on the birth certificate and even if it is later proved that he is not the father - he almost always has to continue to pay child support for that child.

If I woke up tomorrow in your shoes, I would

1 - get a certified copy of the child's birth certificate
2 - get a certified copy of the CS order, paternity test, etc.
3 - find out who is the legal guardian of this child
4 - see a family law/adoption attorney


get certified copies of that stuff first - as you will save on your attorney bill and save time.

you can go to https://usbirthcertificate.com/google/birthcert_e.php?state=Alabama and get a certified copy of the birth certificat, or you can go to the local office in the county the child was born in.

[pp13]

http://divorceinfo.com/blog/?p=292

Hubby?s Daddy If He Says He?s Daddy
September 17th, 2005
When a child is born during marriage, the husband of the mother is presumed to be the father of that child. And if the husband persists in claiming his paternity, no one has standing to dispute that paternity, not even the mother, and not even if she can prove conclusively that he is not the biological father. That?s the holding from the Alabama Court of Civil Appeals in the case of Cravens v. Cravens, Case No. 2040004 (Ala. Civ. App. September 9, 2005).

The parties in the case were married in August 2000, and the wife gave birth to the child a couple of months later. In a subsequent divorce proceeding, the mother challenged the husband?s claim to custody by producing DNA evidence that the husband was not the child?s father.

Anybody can do the math and determine that the child was conceived before the marriage, but that?s not what counts. What counts is the Alabama Uniform Parentage Act (AUPA), codified at Ala. Code § 26-17-1 et seq. (?Et seq.? means ?and following.?). § 26-17-1(a)(1) says that ?A man is presumed to be the natural father of a child if . . . he and the child?s natural mother are or have been married to each other and the child is born during the marriage . . . ?

It?s already settled that an alleged biological father lacks standing to challenge a child?s paternity if that child?s presumptive father persistently asserts his paternity. Ex parte C.A.P., 683 So. 2d 1010 (Ala. 1996). Ditto the mother in a post-divorce action. Hooten v. Hooten, 754 So. 2d 634 (Ala. Civ. App. 1999). This case now extends that principle and holds that, even in the divorce case itself (that is, even when there has been no prior adjudication involving paternity), ?no one, including the mother of the child, has standing to challenge a presumed father?s paternity as long as the presumed father persists in claiming paternity of the child.?

[demarco36]

That is some really good information. Thank you.

One issue though is that in the situation I am referencing the non biological father (husband) admitted before the baby was born that he was not the father but agreed to stay on and raise the baby. I assume that still gives him the presumption of paternity??

Thanks again.

[pp13]

That is some really good information. Thank you.

One issue though is that in the situation I am referencing the non biological father (husband) admitted before the baby was born that he was not the father but agreed to stay on and raise the baby. I assume that still gives him the presumption of paternity??

Thanks again.

One should not make assumptions in law.  Talk to a lawyer.

[Lee Borden]

Yes, the husband of the mother of a baby is the presumptive father of that baby. He's Daddy until he raises the issue.

[demarco36]

in a follow up to my question I am curious about the court granting an order for child support to the biological father. If the mother took him to court for child support and to establish paternity but the husband was not included on that wouldnt that be a violation of due process? it would seem like the husband and even the child would have to be present for the DNA test?? 

Thanks!!

[Lee Borden]

Now I'm confused. Typically a court would not order a man to pay child support without a finding of paternity. I don't understand how that could happen when there is a presumptive father. Did Mom simply not tell the court she had been married when the child was born? If so, Presumptive Dad can reopen the case if he wants to and assert his Presumptive Dad status.