Legal Question in Family Law in California


I have question regarding child custody.

I have a six years-old son. His biological father, my ex-boyfriend (I was never married to him), name is on my son's birth certificate with wrong birthday for himself (by clerk's mistake). We were together when we had baby but broke up when baby turned 1 because he basically stopped showing up to see the baby and said he doesn't want to be part of this baby situation. I was 16 when I was pregnant and he was 18 so we were both young and immature. Don't get me wrong though, HE wanted to have a baby and then abandoned our son.

Since then, I have been single mom, raising the child by myself with my mom's help. He only paid 200-300 a month child support (without court order) not regularly, but on and off through out a year and a half, maybe total of 2000~3000 I believe. Then I lost contact with him when he changed his cell phone number, never got a penny from him since. He never tried to call me either.

So after being a single mom for 3 years, then I met my husband and got married in 2008. I'm 23 now, my husband is 21. A lot of people might think we are too immature and I'm making mistake again.

But we both have been trying our best to take care of my son. He thinks my son as his own son and my son calls him "daddy". My husband is in processing of enlisting military and he wants my son to be a dependent so he can get benefit as well.

Recently we had family emergency overseas, so I needed to make a passport for my son, so I got the application and realized I need his biological father's consent for that. I asked around all my friends to get his phone number so I can contact him. When I got the number I told him I need written consent from him saying that it's okay for our son to have passport. He was mad that I found out his number and called him. I don't think he wants to be part of my son's life, and I also think we are better off without him.

Even though I'm working as much as I could,

To be honest, I really could use the child support money though, raising a child is not cheap..

No matter how much I don't want to deal with my ex, I think my child deserves better than just to be ignored.

So my question is, now that I have his information, I can contact him with my son's matter.

I don't have very much knowledge regarding laws, so it might sound common sense but I would still like to ask to double check what I know is right or wrong.

1) because his name is on the birth certificate, is that mean he has half of the custody right?

1) is it possible for me to collect child support for all those years that he hasn't been?

2) I read online that he can't volunteer to give up the custody in CA, and judges always wants the child to have 2 parents, so my husband has to adopt him? is that right?

3) If my husband adopts my son, does that mean my ex-boyfriend have no custody of my child at all for any future matters? does that mean my ex-boyfriend doesn't have to pay child support for last 6 years that he had custody?

4) If my husband adopts my son, is my ex-boyfriend's name going to be deleted(?) from my son's birth certificate? Would I ever need my ex's information or consent or anything like that for any matter of my son?

5) Is there any other requirements for my husband to adopt my son? Financially?

6) If I go to court with this matter, would I need a lawyer or is it pretty common to deal with it individually? and if I do need a lawyer, how much would this case be? (just an estimate)

7) "IF" he ever just shows up to see my son, after giving up the custody, do I have to let him? or does he get some kind of restraining order from court when he gives up the custody?

Thank you so much in advance.

Asked on 10/27/10, 9:27 am

1 Answer from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

1. I'm assuming that if the bio-dad is on the birth certificate, that you two signed a declaration of paternity or have otherwise established he is the legal father as well as the father in fact. If so, he has parental rights. What that means for custody is NOT that he has a specific right to 50/50, but rather that you both have the obligation to work out custody however you want, and you both have the right to ask a court for a custody plan you think is best for the child if you and he can't agree on what is best.

1. If you have never applied for child support before, you can go back something like three years.

2. The bio-dad is free to give up custody, it's his parental rights and duties he cannot give up. He is not required to have custody at all. You can agree, or possibly get an order if you can't agree, that you get 100% legal and physical custody with little or no visitation.

3. First off, for your husband to adopt the bio-dad would have to agree, or be found unfit (which is not easy, but the abandonment might be enough). He would then have no parental rights OR obligations. He could still be ordered to pay back support. Most commonly in this kind of situation, however, there is an agreement that he will consent to the adoption if you waive back support. That is a VERY common deal in situations like this.

4. A new birth certificate would be issued with your husband's name as the father, once the adoption was done. At that point it would be as if the bio-dad had nothing to do with the child and he would never have any parental rights in the future.

5. Your husband's financial and all other obligations would be the same as if he were the bio-dad from day one.

6. Most people use a lawyer. Cost would depend a lot on whether you just want to do the adoption or if you want to fight the bio-dad for support too, and whether the bio-dad consents to the adoption or fights it. Without knowing how that would go, there is no way to estimate cost. If there is anything to fight about, you would definitely want a lawyer. If everything is done by consent and agreement, you probably wouldn't need one if you really wanted to do it yourself.

7. If he gives up custody, and certainly if the adoption goes through, you have no obligation to let him see the child, but there is no restraining order against him showing up, unless you separately show grounds and get a separate order for it.

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Answered on 11/01/10, 10:38 am

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