is custody "implied" since child has lived with me all her life

I have been posting questions regarding the situation with my stepson, but that has finally been resolved. Now that all is quiet on that front, I have a question about my personal situation. My daughter is 9 and has lived with me all her life. Her father was very abusive and was in jail when she was born because of his arrest for it. He did not sign her birth certificate. When he got out of jail, we were together on and off (mostly off) until she was 4. He continued to be abusive and was jailed for it a couple more times. When I finally left him for good, about a year and a half later, I got married to my current husband. Four and a half years have passed. He has been in and out of jail for misc charges and had little contact with our daughter even when he was not incarcerated (I accepted his infrequent collect calls from jail so she could talk to him...we told her daddy was "out of town" so she still doesn't know daddy has a criminal history.) Last April, a judge allowed me to change her last name to mine (married name) even though dad came from jail to contest it. The judge allowed the change because he never paid support (I never asked for it) hardly saw or called her and still refuses to sign the bc (doesn't contest that the child is his...go figure!!) Anyway, he got out of jail about a year ago. He is trying very hard to turn his life around and wanted to start seeing her. I decided to let her go for visitation with him once in a while, whenever he is interested, provided they stay at a mutual friend's house (supervised). I am a nervous wreck when she is gone, but it is working out ok. He doesn't want to pay any support and I don't want to push it right now, him just seeing her is good for now. My question: a friend told me that since we weren't married and neither one of us has legal custody, if he decides not to give her back to me at the end of his time with her, I would have to petition the court to get her back which could take weeks. Really!!?? If that is the case, I need to get a custody case in motion. Like I said, I really don't want to rock the boat right now since he is finally taking the time to see her. My husband loves her to death so she has an "everyday dad" but she really enjoys going with bio dad...kind of a vacation day for her once in a while. Things are as "friendly" as it is going to get, mostly just toleration of eachother. If he decides to keep her from me, do I really have something to worry about? We live in FL.

Unfortunately, your friend is right - since there is no divorce decree stating the legal custody of the child, neither actually has it and he COULD keep her and not give her back without a petition or order from the court. It would not be kidnapping, because in fact, he has as much right to her as you do and if you willingly let her go with him with nothing in writing stating he HAS to bring her back, then he doesn't have to. I am in this situation right now. Although I am not worried about my daughter's father even coming to visit, if he went to a lawyer and found out there was nothing stopping him from taking her, I am afraid he would and would keep her. I don't know - don't think he really wants her that bad though. Anyway - it's relatively inexpensive to file for custody. About $270 here in Michigan. My lawyer is going to put "reasonable visitation" in the paperwork, even though my ex as pretty much made a verbal agreement with me NOT to see our daughter or form a relationship with her whatsoever. The plan is for him to give up his rights when I get married (whenever that may be) so my husband would then be able to adopt her. Filing for custody is a good idea for you! If he's trying to turn his life around, he may have a change of heart about her too and if he knows he doesn't legally have to return her to you - chances are he won't one of these days. You said he does not pay child support? You never filed for it?? He is not named on the birth certificate either?? I don't know about this situation, that might change things a little. Since it is not stated anywhere that he is her father, the facts might be a little different and he may not have the rights to her that I think he does. Check with a lawyer in that regard. But, don't wait! Do it now to save yourself in the long run. Good luck!!

Newmom is right, but since his name does not appear on the bc, he would have to prove he is the father and until that time you might be able to file kidnapping charges.

Another option is since you weren't married and if you went for custody they would inform him, and since he refuses to sign the bc he could deny it again and the court would order paternity test to prove he is the father. If your current husband is willing, I would check with a lawyer to see if he could adopt her without going through the biodad. The situtation could warrent you to do so. If not make nice with the bio dad and see if he will allow your husband to adopt. Explain to him in doing so, not only will he not be responsible for current support but, you will not seek arrears as well. Once he realizes how much he would owe in arrears and that by this time I'm sure its over $5,000 which is a felony and he could do time again, well this may be a levering tool for you.

Then there is the issue of violence. The court will not award him custody with his continuous violent history, and all you need to do, if he pushes cutody, is ask for supervised visitation. His record will say everything. The courts will not want to disrupt the wonderful home life she has with you and your husband to put her in the hands of a violent criminal.

So you have one of 2 options.
1. Try for adoption.
2. File for custody and have supervised visitation setup for the bio. At he same time you can file for current support and arrears.

If the adoption takes place, the bio is still responsible for arrears up to the point of adpotion, unless you sign off saying you refuse arrears. Again good leverageing tool.

Good Luck and God Bless.

Thanks for the input. I will definately look into getting sole custody of her and supervised visitation (as it has been) and maybe support too since he has been out of jail for a year now. Bio dad keeps telling me he won't "allow" my husband to adopt/he will contest it. I don't understand why he refuses to sign the bc. I think he thinks he won't be responsible for support as long as he is not listed as the father...but I haven't pushed the support issue either. I figured what was the point since he was in jail so much,he couldn't pay anyway and now he is making an effort (such as it is) to see her. I asked a lawyer here in FL when he was in jail and, at the time, hadn't seen her in 1 1/2 years, but had called 2-3 times from jail during that time. The lawyer said he has to have abandoned her for more than 12 consec. months (no contact at all) and I would have to prove it (???) before he would take my case. He said if he didn't sign the bc, but the child knew him as "daddy" and so did our friends and family, I couldn't use that against him in an adoption suit. He even said that his violent history (to the child's mother no less) was only relevent if he tried to gain custody or unsupervised visitation, he could not loose his parental rights because had been in jail numerous times for domestic violence, violation of probation, fleeing police/high speed chase, and posession of cocaine. What's up with that?

He's right, because of his record, he can not lose his parental rights. But, his rights can be limited to supervised visits, and because of his record you are likely to get it. Since your child knows him as daddy and so do family members and friends, this would be good for your case to collect arrears. Again, use the arrears and current support to get him to sign away his parental rights. If he doesn't, make him pay. Then see how he likes it if his check is garnished weekly for current support and if a order is established then they may take more on top of that for arrears. They can take up to 50% of his check to pay for support and arrears. I don't think he would be interested in losing 50% of his check each week. Once the order goes into effect if he doesn't pay, he can be held in contempt and be made to serve more jail time. Unless he likes jail....I don't think the thought of all of this will be appealing to him. I don't think he knows how much trouble he can get into with the courts for not supporting his child. They don't take these matters lightly. I believe once someone has explained this to him he will realize you have the upper hand in this situtation. If your lawyer petitions the court for custody and support, he will have to seek the advice of an attorney. At that point his attorney will tell him he's screwed finanically. Then he'll want to negotiate.

Good Luck and God Bless.

PS Keep me posted. When do you talk to your attorney again? I will be interested to see what he thinks about using support and arrears as a bargining tool.