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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41220
Experience:  I provide family and divorce law advice to my clients in my firm.
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I married kk 7 years ago and she had a 6 year old daughter.

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I married kk 7 years ago and she had a 6 year old daughter. The biological father pays child support after being ordered to take DNA test when the girl was born. He does not see the little girl hardly at all and has not seen her or talked to her, sent any xmas or birthday cards/presents for several years nor return any of the girls calls. I have raised the girl for the last 7 years. The girl is a honor student with straight "A"s. The mother KK was charged for credit card abuse of the elderly and stolen many times. She is in prison and has been for 8 months. I divorced her just before she went to jail. The little girl wanted to come back and live me and have me take care of her. KK signed a Authorization Agreement for Non-parent relative or voluntary care giver to give me legal authority to act as the child's guardian just before she went to jail. The girl has been living with me and I take care of her for the last 8 months and also have her on my health insurance even though biological dad has to carry insurance by court order. Now biological dad just found out KK has been in jail and wants to come get girl and raise her and says the mother lost her rights to the child when she got put in jail. The girl does not want to live with her biological dad because she feels as though I am her step dad/father since I am the one that has been raising her. This will destroy her will to continue doing so well in school and such. Question I have is can he all of a sudden after 2-3 years of not even acknowledging her existence. Without a court order telling me to give her up can the police or him make me give her up? He is saying because his name is XXXXX XXXXX certificate he has the right to come get this weekend and take her from me.

Thank you for your question.

To answer your question directly, NO, he cannot simply appear. Just because his name is XXXXX XXXXX certificate does not mean anything if there is a court order in place transferring sole custody to the mother. He would not have rights toward the child in that case, and he would have to go to court and file to obtain rights. However you can do the same, while the mother is in prison you can go to court and file for formal guardianship and seek permanent rights to the child while the mother is not available. You can point to your bond with the child, your close relationship, your past 7 years of raising the child as your own, and to the lack of fitness on part of the mother and father, and that having your child reside with the absentee father would not be in the child's best interest.

Good luck.

Customer: replied 3 years ago.

Thank you Dimitry,

Just for clarification, there was a joint managing conservator order placed by the court when he was found to be biological father. The mother was shown as Primary Joint Managing and he was shown as Joint managing or Possessory Conservator with the standard visitation rights of 1st, 3rd, and 5th weekends but he has not used them. Can he show up at your school and remove her. The school has a copy of the agreement that my ex-wife KK signed with me.


Thank you for your follow-up. Ugh, that makes it tougher. His rights remain even if he never utilized them. You would need to move fast and file for emergency sole custody and guardianship via an ex parte petition on grounds that you are in fear that the absentee father would appear and kidnap the child. Since he has no prior relationship with the child but you do, the courts will likely side with you based on your bond and grant you rights which would keep him from taking the child. But you would likely still need to file that petition and seek permanent rights.

Good luck.

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