Custody for father of children born out of wedlock?

[Archy]

I am stepmom.  Children live with us.

ULTIMATE GOAL:  Stepparent adoption for me of two children ages 6 and 8.

PROBLEM:  Children born out of wedlock, father has no legal custody established.

STATE:  Indiana

Apparently, the form my husband signed at birth of children did not give him joint custody as he thought.  Indiana law gives sole legal and physical custody to unwed mothers.  We were filing for adoption on basis of abandonment until we came across the legal snag of him not having custody.

Children have always lived with him.  She moved to California one year ago.  She has never paid to support them (that would have brought up a custody battle, and we never wanted any money anyway).  She hasn't had real contact with them since 2001 (she's seen them about 5 times).  She has not seen or spoken to them since June 2004.

Our lawyer says we have a winning case and the judge won't give her our children.
We have to file a restraining order to keep her from taking the children.  She could come take them right now if she wanted.

If we can file abandonment for me to adopt, can he do something similar for custody?

What ARE his rights?

Are we missing ANYTHING?

Thank you so much....

[socrateaser]

>What ARE his rights?

If the child has lived with you for more than six months, then you can petition the court to modify custody and grant you sole custody. When you file, you can contact the other parent and ask her to enter into a stipulated judgment that awards your DH custody, and simultaneously terminates the mother's parental rights and grants you the status of legal parent.

Seems fairly straightforward, however you really need to file for a custody mod now, so as to be able to obtain a temporary restraining order granting you custody. That way, the other parent can just drop in and take the children away.

[Archy]

We are potentially filing for the custody mod tomorrow with our lawyer.  Which she (lawyer) is also filing the restraining order at the same time.  We WERE going to file for the adoption at the same time (3 petitions at once), but the way I understand now is that he must be awarded custody before we can do that.

I guess I don't understand what you mean by stipulated judgement.  Do you mean call her for her consent on the custody or the adoption?  We don't forsee her agreeing to any of this.  We thought it would be an easy case of adoption since she hasn't sent them a gift since Christmas (abandonment is 6months in Indiana).

If we bring the custody issue up to her it would serve as a reminder that she gave birth and she may try to establish contact again.  The children function very well without thinking about her and I don't want that end.  When contact is established that blows our chance of adoption/abandonment, doesn't it?

[socrateaser]

>If we bring the custody issue up to her it would serve as a
>reminder that she gave birth and she may try to establish
>contact again.  The children function very well without
>thinking about her and I don't want that end.  When contact is
>established that blows our chance of adoption/abandonment,
>doesn't it?

Courts almost never cut off a natural parent's custody/visitation rights entirely. So, you certainly may be able to get sole custody, but without a stipulated judgment (i.e., a judgment agreed to by the other parent), terminating her parental rights in favor of you adopting the child, the chance of having this ordered in an adversarial action is probably around 0.01% (1 in 10,000). Could happen, but I wouldn't bet on it.

Anyway, you're lawyer should know how the judge in your case deals with these sorts of situations, so that is your best source for reliable information on this issue.

[dontunderstand]

Soc,

Do you know what the timeline is for abandonment in WA state???

[socrateaser]

>Soc,
>
>Do you know what the timeline is for abandonment in WA
>state???

No, sorry. I'm certain it's listed among the statutes but I don't have time to look at the moment. You can find all of the statutes online, so it shouldn't be too difficult to locate.

[4honor]

The last time I came across it, the statute said one year, but it also listed other circumstances that must be met... and I was not looking for that information. It should be listed in RCW 26.09 somewhere.

The abandonment statute did say something about one year with zero contact and zero support. However, there were additional conditions, so check the statutes and then with an atty to see if any applies to your situation.

[Archy]

I hate to keep bothering you, but out of all the boards I've been to you're the winner.

Our lawyer has mentioned trying for "de facto custodian" on the part of my husband.  I've heard of this done when children are left with the grandparents for an extended period of time.  In our case, the biomom left them in his care since 1999 (they were ages 3 and 1 are now 8 and 6).  Have you ever heard of de facto custodian being granted to the non-custodial father?

Thank you...

[socrateaser]

>I hate to keep bothering you, but out of all the boards I've
>been to you're the winner.
>
>Our lawyer has mentioned trying for "de facto custodian" on
>the part of my husband.  I've heard of this done when children
>are left with the grandparents for an extended period of time.
> In our case, the biomom left them in his care since 1999
>(they were ages 3 and 1 are now 8 and 6).  Have you ever heard
>of de facto custodian being granted to the non-custodial
>father?

De facto custodian simply means that the court recognizes you as doing what you're doing, i.e., raising the child, because of the other parent's failure to do so, and despite the court orders to the contrary.

File to modify custody, get the restraining order, then try to negotiate a settlement with the other parent. The worst that can happen based on your facts is probably that you will be granted primary custody, and the other parent visitation.

Don't get obsessed with the idea of cutting off the other parent's rights because the court will wonder if you're doing it in the child's interests, or as an attempt to punish the other parent.

You just love the kids and care for them and let the chips fall where they may. Deal with the adoption issue after you've dealt with custody, unless the other parent shows a desire to relinquish her parenting rights to you.

[Archy]

Thanks, it sounds like what you're suggesting may be our only choice.

I understand, there are probably many parents out there that hold grudges against the opposite parent.  In writing our will, we were concerned about the children's placement if something was to happen to us (or my husband).  As it stands, our children would be split (we also have a youngster together) and we don't want that.

We are trying to make this as easy as possible on the children so as not to disrupt their emotions.  They get along fine at school and with friends telling them that I'm mom (very honored to hold that title).  I let them determine who is told about "Mommy A****"

If you're curious I can let you know what our lawyer finds regarding the de facto petition.

Thanks again.