a complicated situation

[capric0rn]

My fiance has 2 daughters from his previous marriage. We all live in Alabama. Here is the situation. When he met his 1st wife she was about 2mos pregnant. She explained that the father was a piece of crap and wanted nothing to do with the baby. When it came time for the child to be born she wanted to put him as the father. He agreed. They are now divorced and he has been paying child support on both children and getting them at his time and everything. And if it matters the divorce was initiated by her not him.

Anyway ... we are now considering trying to get custody of the girls after we get married, but she has already threatened to say how the oldest girl is not his and get a test and everything done.

Since his name is on the birth certificate and everything can this result in him losing his oldest daughter. We are planning to talk to a lawyer and everything after we get married, but I just thought someone might have went through this or something similiar.

Thanks for any advice you have.

 

[weenor]

Were they actually married at the time the child was born? If so, he is the legal father and she can try to say the child is not his but . . .it won't matter.

Has there been a material change in circumstances that would warrant the disruption of the children by placing them in his care? If not it really won't matter what any of you say. The kids will stay where they are.

 

[stealth2]

In addition, HE would be the one gaining custody. You'd be nothing more than an onlooker.

 

[LdiJ]

Were they actually married at the time the child was born? If so, he is the legal father and she can try to say the child is not his but . . .it won't matter.

Has there been a material change in circumstances that would warrant the disruption of the children by placing them in his care? If not it really won't matter what any of you say. The kids will stay where they are.

That depends to some extent on the children's ages. Yes, he is absolutely the legal father but the mother can challenge that and possibly succeed if the child is very young....and the biological father can challenge that and possibly succeed as well. If the child isn't an infant/toddler though he has a decent chance of retaining legal fatherhood, and the older the child is, the stronger his chances.

I agree that without a material change in circumstance (for the children) a change in custody is unlikely.

 

[capric0rn]

They were not married when she was born, but were about 2mos later. His name is on the birth certificate though. And she is now 6.

The reason he is wanting custody is because of the mother's work schedule they are most of the time with their Grandmother when they could be with us after we are married. The reason he couldn't go for custody of them at the time was his work requires that he leave at 4am, and he wouldn't of had no way to get them to school or daycare. However, if we were married I could take care of that. Now they spend about 4 days out of the week at their Grandmothers.

 

[weenor]

If that's all you got. . . I wouldn't waste my money. Under "McClendon" just getting remarried and obtaining some stability is not sufficient to justify changing custody. The Court will look at the benefits to the children and there must be many benefits to make the switch. Quite frankly most of the time a switch in custody will only be warranted if custodial parent is shown to be unfit or if the children's health and/or welfare is in danger. A switch in daycare providers isn't enough. Whether you feel mom spends enough time with them or not is irrelevant. You aren't going to get an instant family here so y'all need to start making your own.

 

[brisgirl825]

If that's all you got. . . I wouldn't waste my money. Under "McClendon" just getting remarried and obtaining some stability is not sufficient to justify changing custody. The Court will look at the benefits to the children and there must be many benefits to make the switch. Quite frankly most of the time a switch in custody will only be warranted if custodial parent is shown to be unfit or if the children's health and/or welfare is in danger. A switch in daycare providers isn't enough. Whether you feel mom spends enough time with them or not is irrelevant. You aren't going to get an instant family here so y'all need to start making your own.

I concur.

I'd also add that grandma, as a relative of the children, has more weight where daycare is concerned. The court is not likely to take away the children, due to a fit relative providing childcare, b/c the new spouse wants to play mommy.
When dad has the kids, how would you and he feel if mom decided that he shouldn't get visitation b/c the kids aren't with him but a legal stranger?

If this is how you intend to start out your marriage, by trying to take the children away from their mother, you will be in for a very strained and difficult marriage. Mom will surely see you as a threat and will make things difficult. I don't think this is how you want things to get started.

Beware the war you start, for you may not win.

 

[capric0rn]

If it was simply "daycare" as you want to put it then it would be different. I am talking 4 days out of the week they do not see their mother. She only sees them Thursday - Sunday morning. What would be the difference in him having them during the time she works?? They have a thing now in Alabama at least where 1 parent gets them 4 days one wk and another gets them 3 and then it switches.

HOWEVER, my question was never about US GETTING THE KIDS. It was about could the fact he is not her biological father, but on the birth certificate cause us problems if she chose to make it. We actually have a good relationship with her. BUT his lawyer said if he does that kind of custody agreement then often times child support is reduced greatly and that is where he thinks she might would cause a problem.

But yeah thanks for ignoring the question I asked and sticking your 2cents in about a situation we didn't need advice on. We have often times had to get them during the week because the Grandmother also works and sometimes no one is around to get them. And it is a last minute thing that we have to scramble to make arrangements to get them. And as for a "ready made family or however you implied it" that is also not the case. We plan to have our own kids, thank you very much. Nor well who wants a ready made family honestly? It's just part of the deal so I am willing to do it since that is what HE wants. But once again I never asked for this issue. I asked about the fact he's not 1 of them's biological father. But since you be quick to judge and offer BS advice and not even bother to read what someone puts. I'll just wait til we go to the lawyer and ask someone who actually can read.

 

[Kane]

Cap, why did you focus on the advice from brisgirl, and ignore the others?

Anyway, going to a lawyer is exactly what you should do.

 

[capric0rn]

Cap, why did you focus on the advice from brisgirl, and ignore the others?

Anyway, going to a lawyer is exactly what you should do.

I didn't I'd already replied to the others up there. It's just a little frustrating to ask a simple question and have people out there trying to make you out to be some horrible kid stealer or something. When that wasn't even what I was asking about.

But we have plans to see a lawyer within a few mos. I just thought someone here might know about the situation of his oldest child and could offer some insight.

 

[LdiJ]

I didn't I'd already replied to the others up there. It's just a little frustrating to ask a simple question and have people out there trying to make you out to be some horrible kid stealer or something. When that wasn't even what I was asking about.

But we have plans to see a lawyer within a few mos. I just thought someone here might know about the situation of his oldest child and could offer some insight.

The bottom line is that the child is young enough that paternity could possibly be challenged, but old enough that it possibly couldn't. I don't think its possible to predict the outcome. However, I think there is at least some risk.

Therefore, your plan to file for custody could put your husband at risk for losing the older child....and therefore your chances of getting custody are a very relevant factor.

Basically, its down to you providing daycare while dad works or grandma proving daycare while mom works. Grandma is going to trump you.

Therefore, you will be taking a big risk, when the chances of success are not strong.

A better plan would be to negotiate with mom to spend some after school time with the kids. Obviously dad has to go to bed very early, so that is the most practical way to handle it.

 

[capric0rn]

The bottom line is that the child is young enough that paternity could possibly be challenged, but old enough that it possibly couldn't. I don't think its possible to predict the outcome. However, I think there is at least some risk.

Therefore, your plan to file for custody could put your husband at risk for losing the older child....and therefore your chances of getting custody are a very relevant factor.

Basically, its down to you providing daycare while dad works or grandma proving daycare while mom works. Grandma is going to trump you.

Therefore, you will be taking a big risk, when the chances of success are not strong.

A better plan would be to negotiate with mom to spend some after school time with the kids. Obviously dad has to go to bed very early, so that is the most practical way to handle it.

The main thing was like you said if he could lose the one. Like I said there's a lot to this that I didn't bother to go into, because mainly we just needed to know the chances of him losing his oldest daughter.

The mother works 12hr shifts at night and then has to sleep during the day, so the Grandmother or the Aunt has them during this time. The dad has no problem with this really, but his lawyer from the start suggested a joint deal - of 4 with this 1 - 3 with the other. Then vice versa. However, due to his work this was not an option ... after we were married it could be. We live in the same area so they could go to the same school and everything, and I go to work late enough to be able to get them to school and everything. So he was considering going back and getting this arrangement. When he told the mom he might do this - she went off and said if he tried for that then she'd take away the oldest one from him. She said she needed the full child support payments. Well basically this ticked him off, because it's not that he's trying to take them away from her - just do the joint thing that was suggested at the start, but he couldn't do due to work. But she'd miss the child support payment too much and is threatening to take away the oldest, which he doesn't want to happen. Because then she wouldn't have a father.

So that's the basics of it. Also his youngest cries and begs to not have to go everytime we have to drop them off at the Grandmother's. As you can imagine this is hard for him to deal with too. And she is always saying can't I just stay with ya'll. I don't think of the mother as a bad person and the kids are not mistreated or anything. We think a lot of it is because they are going 'home' to their Grandmother's and not their moms all the time. We know she has to work, and like I said he's not trying to take them from her. Just do that split deal, because we do live in the same area and could get them to the same school. But he's said if there is a chance he'd lose the oldest he'd just let things remain the same for now, because he doesn't want to cause the oldest any pain and so on.

Thank you so much for your advice though, and we will be checking into the joint and if she could take away the oldest one with a lawyer once we are married and can provide to get them to school and everything.

 

[Zephyr]

The main thing was like you said if he could lose the one. Like I said there's a lot to this that I didn't bother to go into, because mainly we just needed to know the chances of him losing his oldest daughter.

The mother works 12hr shifts at night and then has to sleep during the day, so the Grandmother or the Aunt has them during this time. The dad has no problem with this really, but his lawyer from the start suggested a joint deal - of 4 with this 1 - 3 with the other. Then vice versa. However, due to his work this was not an option ... after we were married it could be. We live in the same area so they could go to the same school and everything, and I go to work late enough to be able to get them to school and everything. So he was considering going back and getting this arrangement. When he told the mom he might do this - she went off and said if he tried for that then she'd take away the oldest one from him. She said she needed the full child support payments. Well basically this ticked him off, because it's not that he's trying to take them away from her - just do the joint thing that was suggested at the start, but he couldn't do due to work. But she'd miss the child support payment too much and is threatening to take away the oldest, which he doesn't want to happen. Because then she wouldn't have a father.

So that's the basics of it. Also his youngest cries and begs to not have to go everytime we have to drop them off at the Grandmother's. As you can imagine this is hard for him to deal with too. And she is always saying can't I just stay with ya'll. I don't think of the mother as a bad person and the kids are not mistreated or anything. We think a lot of it is because they are going 'home' to their Grandmother's and not their moms all the time. We know she has to work, and like I said he's not trying to take them from her. Just do that split deal, because we do live in the same area and could get them to the same school. But he's said if there is a chance he'd lose the oldest he'd just let things remain the same for now, because he doesn't want to cause the oldest any pain and so on.

Thank you so much for your advice though, and we will be checking into the joint and if she could take away the oldest one with a lawyer once we are married and can provide to get them to school and everything.

does mom realize that if she goes through the process of disestablishing paternity for the oldest, she will lose that amount of cs? does she realize how much it will cost to do this? does she realize she will have to find the other father, establish paternity and then deal with his custody and cs issues?

 

[acmb05]

then quit saying

If it was simply "daycare" as you want to put it then it would be different. I am talking 4 days out of the week they do not see their mother. She only sees them Thursday - Sunday morning. What would be the difference in him having them during the time she works?? They have a thing now in Alabama at least where 1 parent gets them 4 days one wk and another gets them 3 and then it switches.

HOWEVER, my question was never about US GETTING THE KIDS. It was about could the fact he is not her biological father, but on the birth certificate cause us problems if she chose to make it. We actually have a good relationship with her. BUT his lawyer said if he does that kind of custody agreement then often times child support is reduced greatly and that is where he thinks she might would cause a problem.

But yeah thanks for ignoring the question I asked and sticking your 2cents in about a situation we didn't need advice on. We have often times had to get them during the week because the Grandmother also works and sometimes no one is around to get them. And it is a last minute thing that we have to scramble to make arrangements to get them. And as for a "ready made family or however you implied it" that is also not the case. We plan to have our own kids, thank you very much. Nor well who wants a ready made family honestly? It's just part of the deal so I am willing to do it since that is what HE wants. But once again I never asked for this issue. I asked about the fact he's not 1 of them's biological father. But since you be quick to judge and offer BS advice and not even bother to read what someone puts. I'll just wait til we go to the lawyer and ask someone who actually can read.

Then you need to stop saying WE and US in your thread because as long as you keep saying that they are going to tell you that you have no rights at all in the matter.

 

[weenor]

does mom realize that if she goes through the process of disestablishing paternity for the oldest, she will lose that amount of cs? does she realize how much it will cost to do this? does she realize she will have to find the other father, establish paternity and then deal with his custody and cs issues?

OP- Zephyr makes a great point and this may be your ace in the whole. You have asked both about obtaining full custody and a change in the current arrangement with physical custody. You also indicated that the attorney suggested you consider a joint physical custody situation. The key here will be settlement with the mother and not going to court both because you don't want to take a chance of losing the older child altogether and because of Ex parte McClendon. Ex parte McClendon is a case from the Alabama Supreme Court that places a higher standard of proof upon the parent who seeks to change custody. That parent must establish (through evidence) that there is a material change in circumstances since the last order and that the benefit to the child materially outweighs the inherent disruption in changing placement. What we were trying to tell you earlier is that you have not posted any facts that constitute a material change in circumstance and that your fiancee's change in circumstances (marrying you) is not enough. Please note, that even if your fiancee is not seeking full custody he is seeking a change in physical placement that will trigger McClendon as a matter of law.

With that said, when Mom realizes that de-establishing paternity would be a real pain in the butt and that compromises on child support and physical placement would be in everyone's best interest, hopefully you can settle. All we're trying to tell you is that you is that based on what you've posted the Alabama Court of Appeals would not uphold a change in custody or even joint custody because it would be a change in placement. So now you have the law. I do wish you luck.