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How to get full custody when the other parent is MIA and not on the birth certificate

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RoboMom

Member
TN, USA

My husband would like to adopt my kid. He's been "dad" since my kid could say the word. I can't approve the adoption without full custody. I can't get full custody without the other parent losing or surrendering his rights. He's MIA and not even on the birth certificate, nor is there any signature on an affidavit to acknowledge paternity. How do I challenge the parental rights of someone who doesn't exist to us legally?
 

Just Blue

Senior Member
TN, USA

My husband would like to adopt my kid. He's been "dad" since my kid could say the word. I can't approve the adoption without full custody. I can't get full custody without the other parent losing or surrendering his rights. He's MIA and not even on the birth certificate, nor is there any signature on an affidavit to acknowledge paternity. How do I challenge the parental rights of someone who doesn't exist to us legally?
You need an adoption attorney. Adoption is NEVER DIY project. And I really hope you haven't lied to your son by allowing him to believe his step father is his biological father.
 

RoboMom

Member
You need an adoption attorney. Adoption is NEVER DIY project. And I really hope you haven't lied to your son by allowing him to believe his step father is his biological father.
My child knows the name of the biological father. I answer every question with as much honesty as possible. I have no intention of doing it myself. However, the family law attorney here told me I absolutely cannot work around the other parent unless I convinced him to surrender his rights. How can I do that or file petitions, even with an attorney, if the man cannot be found?
 

Just Blue

Senior Member
My child knows the name of the biological father. I answer every question with as much honesty as possible. I have no intention of doing it myself. However, the family law attorney here told me I absolutely cannot work around the other parent unless I convinced him to surrender his rights. How can I do that or file petitions, even with an attorney, if the man cannot be found?
Do you know what city and state he is in? Can you ask his family how he can be reached?

ETA: How old is your child? How long have you been married? Has paternity ever been legally established through the court? Does this guy know he is a father?
 

RoboMom

Member
Do you know what city and state he is in? Can you ask his family how he can be reached?

ETA: How old is your child? How long have you been married? Has paternity ever been legally established through the court? Does this guy know he is a father?
I know the city he used to live in shortly after he left. He's had a few different homes since. Jobs, too. Any time I've asked for an address or where he's working, I get nothing.

He's estranged, for the most part, from his family, and they don't know his whereabouts. He knows he's biologically related, he did a stint in parenthood before leaving the state.

My kid is almost 5, he left before we reached the first birthday. That is, before crawling, walking, speaking; still a wobbly little baby.

Court has never been a factor because it wasn't necessary until now. I don't know if we'll have to prove paternity or if he'd just sign an affidavit, but I can't move forward unless I have his information.

I've heard the motion to seek sole custody can be publicized if the parent cannot be contacted. Or I can ask if he'd just sign his rights away.

If he never answers the questions I ask, how do I go about this?
 

LdiJ

Senior Member
I know the city he used to live in shortly after he left. He's had a few different homes since. Jobs, too. Any time I've asked for an address or where he's working, I get nothing.

He's estranged, for the most part, from his family, and they don't know his whereabouts. He knows he's biologically related, he did a stint in parenthood before leaving the state.

My kid is almost 5, he left before we reached the first birthday. That is, before crawling, walking, speaking; still a wobbly little baby.

Court has never been a factor because it wasn't necessary until now. I don't know if we'll have to prove paternity or if he'd just sign an affidavit, but I can't move forward unless I have his information.

I've heard the motion to seek sole custody can be publicized if the parent cannot be contacted. Or I can ask if he'd just sign his rights away.

If he never answers the questions I ask, how do I go about this?
You might talk to a family law attorney, and perhaps another adoption attorney. Your attorney seems to believe that it cannot be done without the father voluntarily terminating his parental rights, and there are options for involuntary termination, particularly if he is deemed to have abandoned the child. So, talk to a couple of other attorneys in your area to see what other options might exist.
 

RoboMom

Member
It's been brought to my attention that if I couldn't find an address to send notice of my petition, and I still had a way of contacting the paternal donor but didn't mention it before finding an alternate route to gain custody, that he could claim I didn't try all that's within my power to get the information I need.

I know that's a long scenario. If I think about it in terms of a divorce, you can live with a person and think everything is fine, then suddenly you have divorce papers on the table and the spouse is gone.

I didn't think continuing contact could mean that I'm obligated to state my intention. I've done my part by asking for his location, workplace, address, etcetera. Is that not enough? Do I need to tell him somehow that I'm sending papers once I find him, because he would know regardless once they got to him.
 

LdiJ

Senior Member
It's been brought to my attention that if I couldn't find an address to send notice of my petition, and I still had a way of contacting the paternal donor but didn't mention it before finding an alternate route to gain custody, that he could claim I didn't try all that's within my power to get the information I need.

I know that's a long scenario. If I think about it in terms of a divorce, you can live with a person and think everything is fine, then suddenly you have divorce papers on the table and the spouse is gone.

I didn't think continuing contact could mean that I'm obligated to state my intention. I've done my part by asking for his location, workplace, address, etcetera. Is that not enough? Do I need to tell him somehow that I'm sending papers once I find him, because he would know regardless once they got to him.
You might have better luck getting the information if you state your intention. Odds are, you would need the information to go after him for child support, and that generally makes that kind of guy hide. If he knows that you want it for a stepparent adoption, which would make child support a moot point, you might get the information easier.
 

RoboMom

Member
You might have better luck getting the information if you state your intention. Odds are, you would need the information to go after him for child support, and that generally makes that kind of guy hide. If he knows that you want it for a stepparent adoption, which would make child support a moot point, you might get the information easier.
I thought so, too. However, I have some concerns. Bare with me.

I never sought child support because that required both finding the man and proving paternity. Until now, me being the only proven parent has been helpful in many ways like for SNAP and school and health department visits. I never needed child support, either.

Also, there's a problem with the father's mental state. If I catch him on a good day, he may agree to avoid payments and sign his rights away. Being that he has bipolar disorder and heavy aggression, any one thing can turn his positivity around like a switch.

That means there's a possibility that the mere mention of child support could make him sign papers or he could feel like fighting. That also means that if I got him to agree, he could change his mind at random and stall the case.

If I got into contact with him and got the information I need, need I say more?
If I got him to agree to surrendering, should I do it in a way that it's documented or recorded?
Would that be a void transaction if he were to suddenly change his mind and decide to fight?

Would I be better off accepting that he won't give up an address to send papers to and cut all communication so it's no longer possible to say that I didn't try hard enough?
 

Zigner

Senior Member, Non-Attorney
I thought so, too. However, I have some concerns. Bare with me.

I never sought child support because that required both finding the man and proving paternity. Until now, me being the only proven parent has been helpful in many ways like for SNAP and school and health department visits. I never needed child support, either.

Also, there's a problem with the father's mental state. If I catch him on a good day, he may agree to avoid payments and sign his rights away. Being that he has bipolar disorder and heavy aggression, any one thing can turn his positivity around like a switch.

That means there's a possibility that the mere mention of child support could make him sign papers or he could feel like fighting. That also means that if I got him to agree, he could change his mind at random and stall the case.

If I got into contact with him and got the information I need, need I say more?
If I got him to agree to surrendering, should I do it in a way that it's documented or recorded?
Would that be a void transaction if he were to suddenly change his mind and decide to fight?

Would I be better off accepting that he won't give up an address to send papers to and cut all communication so it's no longer possible to say that I didn't try hard enough?
The answer to ALL of this is simple: GET AN ATTORNEY. As was mentioned in the first reply, adoption is not a do-it-yourself proposition.

Edit: Your dig at the FATHER of the child is noted.
 

not2cleverRed

Obvious Observer
It's been brought to my attention that if I couldn't find an address to send notice of my petition, and I still had a way of contacting the paternal donor but didn't mention it before finding an alternate route to gain custody, that he could claim I didn't try all that's within my power to get the information I need.

I know that's a long scenario. If I think about it in terms of a divorce, you can live with a person and think everything is fine, then suddenly you have divorce papers on the table and the spouse is gone.

I didn't think continuing contact could mean that I'm obligated to state my intention. I've done my part by asking for his location, workplace, address, etcetera. Is that not enough? Do I need to tell him somehow that I'm sending papers once I find him, because he would know regardless once they got to him.
In order for an adoption to occur, because you know who the biological father is, he has to be notified that you are petitioning to terminate his parental rights, pursuant a step-parent adoption.

Your current lawyer understands that Dad has to be served. However, if service can't be done in person, there is (almost always) alternative forms of service. The rules of service vary, so look up specifics to your state.

Here are some of the possibilities:
1) Dad could voluntarily agree to terminate parental rights. (<-- Option your current lawyer understands. Dad might just understand it as getting out of having to worry about child support.)
2) Dad can respond and effectively say, "Hell no! This kid is mine!" (<-- Option your current lawyer understands. Dad might have a renewed interest and suddenly petition for visitation.)
3) Dad is legally served (<-- not necessarily in person) and does not respond, does not show up to court. (<-- Option your current lawyer does not seem to understand. Judge can enter a default judgement.)

If Dad voluntarily signs away parental rights, or loses them in a default judgement, it is possible he may try to reassert his parental rights. However, there is a limited legal window in which he can do this.

You desperately need an adoption attorney, which is somewhat different from Family Law.
 

Maymee

Junior Member
While I certainly understand your attorney's point of view and he isn't entirely wrong, there are other ways to go forward with an adoption when the parent whose rights are to be terminated cannot be found.

The TN attorney with whom I spent most of my working career would have strongly recommended a private investigator to find his current whereabouts. If that didn't work, he would have attempted service at his last known address and that of his family. If all of that had been to no avail, he would have done service by publication.

Of course, it's going to be dependent on your judge whether he believes such efforts are enough to warrant moving forward with the TPR and adoption. While I've never witnessed a judge say all of those things weren't enough, I won't say it can't and hasn't happened. The one thing I have seen consistently, however, in a scenario such as yours is that the Judge will typically delay setting a hearing date for the adoption as long as reasonably possible in order to give every possible chance for the missing parent to surface and respond, so don't be disappointed if this seems to take much too long. It's just a judge doing his best to keep the adoption from later being overturned on appeal.

My best advice is to get a consultation with a few reputable family law (adoption falls under family law in TN) attorneys in your area.
 

LdiJ

Senior Member
While I certainly understand your attorney's point of view and he isn't entirely wrong, there are other ways to go forward with an adoption when the parent whose rights are to be terminated cannot be found.

The TN attorney with whom I spent most of my working career would have strongly recommended a private investigator to find his current whereabouts. If that didn't work, he would have attempted service at his last known address and that of his family. If all of that had been to no avail, he would have done service by publication.

Of course, it's going to be dependent on your judge whether he believes such efforts are enough to warrant moving forward with the TPR and adoption. While I've never witnessed a judge say all of those things weren't enough, I won't say it can't and hasn't happened. The one thing I have seen consistently, however, in a scenario such as yours is that the Judge will typically delay setting a hearing date for the adoption as long as reasonably possible in order to give every possible chance for the missing parent to surface and respond, so don't be disappointed if this seems to take much too long. It's just a judge doing his best to keep the adoption from later being overturned on appeal.

My best advice is to get a consultation with a few reputable family law (adoption falls under family law in TN) attorneys in your area.
Just make sure its an attorney who does lots of adoptions.
 

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