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A

Annagrl

Guest
What is the name of your state? CA
I'm pretty new to this site, but I've browsed around and I'm sure my questions will provide some sarcastic, yet possibly helpful, replies. I have a five year old son. His bio-dad has never paid support, his name is not on my son's birth certificate and he has not called, written or attempted contact in the past 3 1/2 years. We moved onto my parent's property last year while I attempt to complete nursing school. Here's my questions:
1) If, God forbid, I die, would my parents automatically gain guardianship/custody of my son? I have stipulated that I would like them to care for my son in my will, but is this binding?
2) I'm getting married next June. My fiance would like to adopt my son. (I can already feel the eyes rolling ). My question is this, let's say he didn't and then I died, say 5 years up the road, would my son be "up for grabs"?
3) Is my safest bet to file a "Claim of Abandonment" against my son's bio-dad? Is this what you guys call a PDR? He lives in Illinois, so are Illinois laws what affect him, or California laws
 


I AM ALWAYS LIABLE

Senior Member
My response:

I have no idea where the above poster is getting that information, but it most assuredly is not California law.

You can't "give away" the child, or the other parent's parental rights, by way of your Will and your death does not imbue the grandparents (or other relatives) with your parental rights; nor does it diminish the surviving parent's parental rights.

"Nothing in the unfortunate circumstance of one biological parent's death affects the surviving parent's [constitutionally-protected] fundamental right to make parenting decisions concerning their child's contact with grandparents". [Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863, 102 Cal.Rptr.2d 476, 486 (brackets added)]

If you die during the child's minority, the surviving parent immediately becomes entitled to sole custody by way of Petition and a court ordered positive paternity test, unless it is proved by clear and convincing evidence that such custody would not be in the child's best interests and would be detrimental to the child. The full panoply of parental rights reverts to the surviving parent, including the right and responsibility to make all decisions relating to the child's health, education and welfare. [Ca Fam § 3010(b); Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 223 Cal.Rptr. 707; In re Janette H. (1987) 196 Cal.App.3d 1421, 242 Cal.Rptr. 567; Schammel v. Schammel (1894) 105 Cal. 258, 38 P 729]

Therefore, the question of "custody modification" via your Will becomes moot with your death: i.e., since there is now only one parent to assert parental rights, the original custody order itself is also moot. (This of course assumes that only the parents were parties to the custody order.)

So, the best thing to do is make sure you stay alive during the child's minority.

IAAL
 
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N

nhunsb1

Guest
8605. A child not having a presumed father under Section 7611 may not be adopted without the consent of the child's mother, if living.

Based on the information provided I didn’t feel that the ‘father’ in question fit 7611… now if he did accept paternity then he would be first in line for the child.

If I’m still not on the right track, I’d greatly appreciate some direction to get me there…
 

I AM ALWAYS LIABLE

Senior Member
nhunsb1 said:
8605. A child not having a presumed father under Section 7611 may not be adopted without the consent of the child's mother, if living.

Based on the information provided I didn’t feel that the ‘father’ in question fit 7611… now if he did accept paternity then he would be first in line for the child.

If I’m still not on the right track, I’d greatly appreciate some direction to get me there…

My response:

Here's your "right track" and "direction" - -

I didn't type and cite the above-mentioned cases because I enjoy typing. I cited those cases because they are "on point", and further, were cited to be read by both the original writer and anyone else with questions - - including you.

IAAL
 

JETX

Senior Member
Of course, IAAL is correct.

And I offer the following in specific response to the writer:

"If, God forbid, I die, would my parents automatically gain guardianship/custody of my son?"
*** No.

"I have stipulated that I would like them to care for my son in my will, but is this binding?"
*** No. As correctly noted by IAAL, upon your death, the childs remaining parent 'inherits' all rights of the child. IF the surviving parent cannot be found (or is not known), the child will become a ward of the state and they (the state) will determine best placement for the child. Of course, this could include consideration of your parents if they petition the court.

"I'm getting married next June. My fiance would like to adopt my son. (I can already feel the eyes rolling ). My question is this, let's say he didn't and then I died, say 5 years up the road, would my son be "up for grabs"?"
*** See above. Oh, and before he can adopt, you would have to name and get the permission of, the childs other parent.

"Is my safest bet to file a "Claim of Abandonment" against my son's bio-dad?"
*** That is one option you can attempt, but you would need the services of an attorney since this is a complex issue.
 
A

Annagrl

Guest
Well, here's my next question then, do I have sole custody of my son since his bio-dad has never established paternity, put his name on the birth certificate or attempted to pay child support? We never went to court, we weren't married, I never filed for child support, he's hasn't attempted to be a part of his son's life . . . etc... Would it be wise for me to get all of this established by a court order, or does the fact that his bio-dad has been absent from his life give me sole custody?
 

JETX

Senior Member
"do I have sole custody of my son since his bio-dad has never established paternity, put his name on the birth certificate or attempted to pay child support?"
*** No. You do have sole PHYSICAL custody, but not LEGAL custody. The father can step forward at anytime and file for custody of HIS child.

"We never went to court, we weren't married, I never filed for child support, he's hasn't attempted to be a part of his son's life . . . etc..."
*** And exactly how is that relevant to anything??

"Would it be wise for me to get all of this established by a court order, or does the fact that his bio-dad has been absent from his life give me sole custody?"
*** See above. The only way that you can have sole LEGAL custody is with a court order.
 
I

Itscryttle

Guest
I have a question... if I may jump in here along the same lines...

I have a 10yr old never married her father. I am now married (been married for 6 yrs) if I die then would her bio father automatically get her??? Even though I do have sole custody of her and he has no contact with her.

Would the only way to insure that IF I do die that she would stay with my husband would be for him to adopt her?:confused:
 
H

hexeliebe

Guest
The child would automatically go to the bio-father or, if he can't be found, become a ward of the state.

Your new husband has no rights to the child unless he adopts her, and unless the bio-father agrees or you spend years and thousands of dollars trying to find him or waiting for the prescribed time for your state, it ain't gonna happen.
 

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