Common law marriage and custody

I have a friend who has been in a long-term relationship (19 years) but never married. The couple has two children, they had three but one passed away. The father has served time in prison for drug charges and was released 9 years ago. Since then his record has been clean and he has really turned his life around.
His girlfriend wants out of their relationship and wants the kids (ages 9 and 15). She has begun to use drugs again and thinks because he served time in jail, she can keep custody no matter what.
Does anyone out there know the best way he should proceed in order to keep his children? He is an excellent, attentive, involved parent. His girlfriend barely notices them. HELP!! Thanks

Casey

[I AM ALWAYS LIABLE]

My response:

There are 11 States which allow Common Law Marriages, of which Connecticut is not one (See below)

Although a license and ceremony generally are required, some states still recognize what is known as a "common-law" marriage. In this type of "marriage," which was more common in frontier times, a man and woman who have lived together for a certain period of time and who hold themselves to be husband and wife are considered to be married even without a license and a formal ceremony. Because a common-law marriage is not formally recorded, the couple, if challenged, may have to prove the existence of their marriage contract. They may have to prove that they live together as man and wife and present themselves to the public as a married couple. Where recognized, a common-law marriage is as valid as a typical marriage.

Eleven states and the District of Columbia currently recognize common-law marriages. Each of these jurisdictions has unique requirements for common-law marriage.

Alabama
The requirements for a common-law marriage are: (1) capacity; (2) an agreement to be husband and wife; and (3) consummation of the marital relationship.

Colorado
A common-law marriage may be established by proving cohabitation and a reputation of being married.

District of Columbia
The requirements for a common-law marriage are: (1) an express, present intent to be married and (2) cohabitation.

Iowa
The requirements for a common-law marriage are: (1) intent and agreement to be married; (2) continuous cohabitation; and (3) public declarations that the parties are husband and wife.

Kansas
For a man and woman to form a common-law marriage, they must: (1) have the mental capacity to marry; (2) agree to be married at the present time; and (3) represent to the public that they are married.

Montana
The requirements for a common-law marriage are: (1) capacity to consent to the marriage; (2) an agreement to be married; (3) cohabitation; and (4) a reputation of being married.

Oklahoma
To establish a common-law marriage, a man and woman must (1) be competent; (2) agree to enter into a marriage relationship; and (3) cohabit.

Pennsylvania
A common-law marriage may be established if a man and woman exchange words that indicate that they intend to be married at the present time.

Rhode Island
The requirements for a common-law marriage are: (1) serious intent to be married and (2) conduct that leads to a reasonable belief in the community that the man and woman are married.

South Carolina
A common-law marriage is established if a man and woman intend for others to believe they are married.

Texas
A man and woman who want to establish a common-law marriage must sign a form provided by the county clerk. In addition, they must (1) agree to be married, (2) cohabit, and (3) represent to others that they are married.

Utah
For a common-law marriage, a man and woman must (1) be capable of giving consent and getting married; (2) cohabit; and (3) have a reputation of being husband and wife.


Notwithstanding the above, marriage or the lack of marriage, insofar as child and visitation issues are concerned, have no bearing whatsoever in the eyes of the court. You should begin by hiring an attorney to file a Petition with the court for custody and visitation. These issues, and how extensive they will be for the parents, will depend upon the proof to the judge, and whether custody to one parent over the other is "in the best interests of the child." Both can be severely curtailed depending on the "habits" of the parents; e.g., anything from unconstrained visitation to monitored visitation.

Good luck to you

IAAL


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