Here are the basics:1. My fiance had a child out of wedlock with his ex-girlfriend 13 years ago (when they were 20 and 19 respectively).2. His name is XXXXX XXXXX birth certificate. He has constantly been there for her and paid child support as was mutually agreed upon since she was born.3. His ex then had a son with another man (he was never in the picture). My fiance has been the boy's father for all intents and purposes, but has not legally adopted him for fear that she will come after him for child support. He has paid for many things for this boy including montessori preschool, after school day care, food, clothing, prescription medication, etc. The boy even lived with us for 2 years while the mother was supposed to be getting her live together (when he was in preschool and kindergarten). The issue has never been the money, it has been that he doesn't trust her to use it for the child. 4. The boy is now 6 years old and the mother took him back to live with her and her boyfriend in their 2 bedroom, 1 bath apartment. She is unemployed and has had 3 different jobs (that we know of) in the last 2 years.5. His daughter lives with us and the mother and boyfriend keep undermining our rules and refuse to parent as a team. Most recently they told his daughter to lie to him and he found out. 6. We feel our only course of action is to apply for sole legal and physical custody and keep her on a visitation schedule (the same as it is now), they get two weekends a month and any holidays that they want. 7. My fiance filed the paperwork in the Long Beach courthouse and we are scheduled for mediation on 2/22.8. His ex is now refusing to let him speak with his son and is not responding to phone calls or text messages. My question is this: If he files for visitation of the son, can she go after him for back child support even though he has paid for numerous items since the boy was born? Also, how hard would it be for him to get visitation? We don't have a lot of money to fight this which is why we are pursuing custody through mediation, but this boy is extremely special to my fiance and he loves him very much (the boy calls him Daddy and doesn't know that he isn't his "real" dad).
State/Country relating to question: California
Reasoning with her (obviously not working).
Obviously, this is a difficult situation. Essentially, the only way to get "legal" rights for the boy is to either adopt the child, establish paternity of the child or guardianship or something similar. These all require the Court system.
If the Mother is opposed, it is possible the Court could deny all of these even though he has been there and supported the boy throughout his life.
The most practical, quickest, and inexpensive way would likely be to negotiate with the Mother at the Mediation.
This might even include a "monetary" settlement for back support or something along those lines, to get the mother to agree.
Generally, the Mother could not ask for back-support legally because your fiance has had no legal obligation to support the child. However, as I suggested, this may be part of the negotiation to "motivate" the Mother to agree.
I am sorry for this situation as this is really sad for both you and your fiance and especially for the children.
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So legally, can he even file for visitation of the boy? Would that have to be an issue separate from the custody dispute regarding his daughter? His ex is very vindictive and I could see her keeping the boy away from him regardless of whether or not that was what is best for the boy. Wouldn't a court/judge see that and rule accordingly? I mean, she did GIVE him to us for 2 years. We have never asked for a cent from her for either her daughter or her son.
He can file for visitation but it is likely that if the Mother contests this, the Mother may prevail. This is because generally, only the Mother has legal rights to the child born out of wedlock until Paternity has been established. Now in this particular set of circumstances, the Fiance could claim the Mother "abandoned" the child or something similar to prevail on some legal theory of why the Fiance should be granted visitation rights in this case.It really depends on the Judge. From what I understand, California can sometimes be progressive, but there is no way to predict how a Judge will rule.Like I said, this situation is unfortunate and especially for the kids. You may want to consult with an attorney to discuss all the possible options. If I have answered your question, please Accept my answer. Thank you and Good Luck!
Relist: Incomplete answer.I'd like to get an answer from a lawyer more familiar with CA law (i.e. someone practicing family law in CA).
Hello,I am a member of the State Bar of California and I have practiced California family law. You asked: If he files for visitation of the son, can she go after him for back child support even though he has paid for numerous items since the boy was born? Also, how hard would it be for him to get visitation?A: Under Family Code 4009, "An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order shall be effective no earlier than the date of service." Thus, the mother cannot obtain back child support, if no prior child support order was ever made. Regardless of the above, no one other than the "legal" parents of a minor child can be ordered to pay child support. Your husband is not the legal parent of his "son," despite the close relationship, therefore it is impossible to legally require your husband to pay support under any circumstance. See Family Code 3900; 3930. Concerning custody or visitation, California law does not permit a person who is not the biological or adoptive parent of a child to establish visitation -- except for a grandparent. Family Code 3104. Thus, regrettably, unless your husband agrees to adopt the child and the mother consents, your husband cannot file to obtain any custody or visitation -- it is legally impossible to accomplish this, except through an adoption.Hope this helps.
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