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socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Need help with a possible visitation case between California

Resolved Question:

Need help with a possible visitation case between California and Arkansas. My daughter was born in California in 2002 with only me (the mother) on her birth certificate. I went through a paternity process to begin child support but the father never showed and was automatically forced to pay child support since his no show was considered his acknowledgement of being the father. My daughter is now going to be 11 in a couple months and has never once seen her father and knows nothing of him. I got into another relationship right after she was born and I am now married to the only man she knows as her father. Her biological father even signed permission for changing her last name to my husbands. Her biological father has only paid child support a handful of times about 9 years ago. We now live in Arkansas and have been for the last 4 years. The biological father has been out of jail for a year now and now decides he wants to have visitation rights. What options do I have to not put my daughter through this and not allow visitation. She has never met him, knows nothing about him, and thinks my husband is her father. We have even been planning a step parent adoption since we just met our 2 years of marriage point. I would like some advice on what would happen if he did try to go to court for custody since he has back child support, never seen her for 10 years, and lives in California with a criminal history.

Thank you!
Submitted: 3 years ago.
Category: Family Law
Expert:  socrateaser replied 3 years ago.

Under Cal. Family Code 7822(a)(3), a parent may bring an action to terminate the parental rights of the other parent if "One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child."

Given that the original paternity judgment was made in California, the Arkansas court would have to consider California law in determining whether or not it has authority to terminate the father's parental rights. Based on your allegations, it seems that it would not be difficult to prove that there has no been no support or communication from the parent for the requisite 12 month period. But, that's what you would have to prove.

Assuming that you could do this, then you could prevent the father from exercising any custody, or other rights concerning the child. Otherwise, unless that parent consents to a step-parent adoption by your husband, then the Arkansas court would be obligated to permit supervised visitation, with the possibility of increased visitation over time.

I realize that the possibility of forced visitation with the bio-dad is probably nauseating -- and it may be for the child, too. If so, then you would be entitled to ask the court to terminate all visitation, until some sort of reconciliation plan could be worked out.

More than likely the bio-dad is trying to leverage his parental rights to get you to agree to compromise his arrears, so he can be free of the obligation of child support forever. You may want to use this negotiation leverage to get his consent to the stepparent adoption. However, you must be extremely careful about how this is handled -- because a payment or forbearance of a debt in exchange for custody/parental rights, is quite literally the definition of slavery (which is a felony). Parents cannot buy or sell parental rights.

That said, this sort of under the table arrangement does in fact take place with some routine, despite its illegal underpinnings. You just have to handle it through a lawyer and maintain nothing in writing.

So, if that's what it comes down to, and it seems as though it very well may, then get a lawyer with adoption experience, and try to negotiate something with the bio dad to get him to go away quietly.

Hope this helps.
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