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My daughter had a child with a married man that was

Customer Question
My daughter had a...

My daughter had a child with a married man that was supposedly close to having his divorce. it has been over 2 years now and he is not divorced and he has been fighting for custody of his children through marriage now. who has custody of the child that was born out of wedlock

Lawyer's Assistant: Because family law varies from place to place, can you tell me what state this is in?

Virginia

Lawyer's Assistant: Have you talked to a lawyer yet?

I am inquiring for her.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

She is living in the man's house and trying to move out but he continues to threaten to take the 2 year old from her

Submitted: 9 months ago.Category: Family Law
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Answered in 5 minutes by:
9/19/2017
Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago
ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Family Law
Satisfied Customers: 18,161
Experience: Licensed Texas General Practice Attorney
Verified

Thank you for using JustAnswer.

I'm sorry to hear about your situation. In the situation where no custody order is filed, AND assuming that the father has signed an acknowledgment of paternity ("AOP") or some other legal determination of paternity, then legally both parents would have "custody" of the child. That is, each parent has equal rights. Neither would have rights that would trump the other. Of course this creates a problem when there's a conflict between the parents. That's what going to court and seeking a custody/visitation order is typically meant to resolve.

Now he's not "automatically" the legal father if they're not married and he doesn't file an AOP. In that case, assuming no paternity action has been filed and paternity has not been established by an AOP, then she would have sole custody of the child until any paternity action was filed and completed showing that he is the father.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

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Customer reply replied 9 months ago
no, this did not clear things up
Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

Can you tell me what I didn't make clear?

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

That is, what other questions do you have? Any follow up questions, clarifications, etc...?

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Customer reply replied 9 months ago
I understand that if he is married to another woman that the custody in virginia goes to the mother of the child born from an affair
Customer reply replied 9 months ago
I have already been charged $47 for unlimited questions until I am answered. that is what the reception person said
Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

Yes, the mother has "default" custody when the parents are unmarried. But the father can still petition the court to award custody to him (which frankly rarely happens) but the father does have that right. My point, however, is that the legal parents of the child both have rights to the child. And custody papers filed with the courts are specifically to clear up those issues that come up when there are disputes.

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

I'm here to answer your question, so don't worry about that. I assume you received a phone call request. These are system generated (I have no control over them). We can certainly continue here, and I'm committed to answering your question and making it as understandable as possible.

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

And forgive me if I use any "legalese" language or am not clear with my explanations. That's why I want you to ask any follow up questions to make sure that things are clear, why I asked if you have any other questions to let me know, and only when you don't have any more questions to rate my answer.

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Customer reply replied 9 months ago
He is on the birth certificate. Does the fact that he is fighting for custody with his current wife bare any weight on the situation.
Especially since she is trying to work on child support, custody and alimony potentially. It's such a crazy situation
Customer reply replied 9 months ago
the wife is doing that.
Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

I understand. These situations all tend to be a little crazy, some more than others. Yes, it's certainly a relevant factor. It could be that he's a "deadbeat" (I don't know, but it sounds like a possibility) that doesn't want to pay child support, so would rather have custody. A court is going to make a determination of what's in the best interest of the child in determining custody (in a custody petition). But he would still have to go to court and ask for it. The judge is required to consider a list of factors, including:

  1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
  9. Any history of family abuse or sexual abuse;
  10. Such other factors as the court deems necessary and proper to the determination.
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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

And practically speaking, where the father is married to another person and has the child out of wedlock, it's true that the child almost always stays with the mother. The main consideration is with the child here (as that can be harmful to the child's mental development).

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

Does that clear things up? Or are there any other questions / issues that I can address?

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

Did you have any other questions before you rate this answer?

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

Are you there? Should I continue to await your response, or may I assist the other customers that are waiting?

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

My apologies, but I must assist the other customers that are waiting. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time (~50 minutes) and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

Did you have any other questions before you rate this answer?

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Family Lawyer: ScottyMacEsq, Lawyer replied 9 months ago

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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