Legal Question in Family Law in California

I am 4 months pregnant, and the father and i came to a mutual agreement that he will have no rights, custody, or even meet the child when its born. We agreed that due to his drug use, mental illness, and instability it was the best thing to do. My question is, how do i get this in writing and make it legal, so years down the road, if he decides to change his mind and demand for rights he wont have any?

Asked on 12/19/11, 9:19 am

3 Answers from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

Unless you can get a court determination that he is permanently unfit to be a parent, which is highly unlikely unless and until events occur that are harmful or dangerous to the child after it is born, there is no way to do what you have agreed to do. The only other way would be if you married someone else and your husband adopted the child. The reason for this is that there is a strong public policy that all parents be responsible for their children. The state cannot take away parental rights, or enforce an agreement abandoning parental rights, without relieving the parent of their parental obligations as well. The state will not do that unless there is a direct and serious danger to the child if the parental rights continue to exist, or there is a new person (e.g., step parent) willing to take on the obligations.

Probably the best thing for you to do is agree that when the child is born the legal birth record papers will reflect father as unknown. That way he will have to go to the trouble and expense of a court action to establish paternity before rights and custody even become a topic for discussion.

The other option is to establish paternity at birth and get court orders now that he gets no custody and full legal and physical custody to you. He would then have to go back to court and show a material change in circumstances if he ever wanted even supervised visitation.

Ultimately, though, you need to bear in mind that the 18 years that custody or visitation would be an issue is a long time. Not to mention that parental relations last a lifetime. People change. Both parents are important to children, and your child WILL, sooner or later, ask about their dad. You just don't know what your world, your child's world and your ex's world will be like 5, 10, or 15 years from now. That is another reason that absent adoption, or clear and present danger to the child, the courts and the law do not allow permanent severing of parental ties.

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Answered on 12/19/11, 11:28 am

Michael Schneider Family Law Center

Unfortunately, the last answer is not entirely correct. The law states that no person can give up their rights as to a child, unless someone else has taken those rights upon themself, as in a step parent adoption. Since, the rights are considered to be those of the child to have a relationship with both parents and the law specifically states that you cannot simply give up your rights, thus making what is called a "legal orphan".

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Answered on 12/19/11, 4:39 pm
Robert Kane Law Offices of Robert D. Kane, Jr.

I would like to reiterate Mr. McCormick's comment about people changing. Even if you could enter into a "contract" as you describe it could be extremely harmful to you, the father and, most importantly, your child in the future. Perhaps the father gets his act together down the road and even becomes very successful member of society.

I am not so sure I agree with Mr. McCormick's advice on leaving the father's name as "unknown" on the legal birth records if you know who is the baby's father. I not familiar with the form of the documents, but they would have some legal implications. If you knowingly withhold this information it would at least be dishonest, and may even technically violate the law (although I doubt it would ever amount to anything.)

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Answered on 12/20/11, 6:34 am

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