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advice re: nonmarried/custodial parent obtaining sole custody

  • Thread starter Thread starter lphu
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L

lphu

Guest
What is the name of your state? CA

My sister (who's in her mid 30s) has been with her husband (who's also in his mid 30s) for many years and recently gave birth to a baby girl almost 5 months ago. They had a common law marriage (was never legalized) and was living together for almost a year when she finally decided to leave him for good. She left him because according to her, he was unfit (as a husband and a father), irresponsible, lazy, and very immature. He was unemployed for several months, but kept that fact hidden from her until she found out through his sister. Every day, he would leave for the day and would not return until 9 or 10 p.m. at night. He is not motivated to find work or feel that he needs to work on anything to improve their relationship (even for the benefit of his child). They were arguing a lot and my sister did not feel that this was a good environment to raise her daughter in.

She is now living with my parents and has made the decision to not have any contact with her husband and she does not want her daughter to have any contact/relationship with him either. She has been there for about a month now and her husband has not made any attempt to contact or visit with his daughter. He does not seem interested in being involved in his daughter's life or my sister's and he is not willing to change for anybody....so my question is how or what would my sister need to do at this point to obtain sole custody of her daughter?

She works full time and in the next several weeks, she will have to drop her daughter off to daycare and she does not want to worry about coming to pick her daughter up one day and find out that she has been taken by her father (who has not been involved in her care, but may take her out of spite for my sister). She wants to do what is within her legal right as a mother to ensure that her daughter can be raised in a loving, healthy environment with responsible people who can provide her with good, moral values and have a positive influence in her life. Thank you for your assistance in this matter.

from Concerned Sister
 


Whyte Noise

Senior Member
The first thing to clear up, if they are in CA as well, is that they are NOT common law married. California does not permit common law marriages within it's borders, but they recognize a common law marriage if it were entered into in a state that DOES permit them.

That said, if they have resided in California all this time, then he is an unmarried father. As such, did he sign an acknowledgement of paternity at the hospital when the baby was born?
 
L

lphu

Guest
Yes, he did sign an acknowledgement of paternity. He is named as the father on the baby's birth certificate.

Concerned Sister
 
J

JoandJa'smom

Guest
Your sister needs to talk to a lawyer but at this point I do not think her ex has any legal rights to the child and he would have to petition the court to get them. However, I think it would be best if your sister files for sole custody right away.

JoandJa'smom
 

blueboy

Member
I agree she does need to file immediatly. However, I have to disagree on the point that he has no rights. I believe that in CA where I am also that custody is assumed shared unless dictated by court order. He could ask for a visitation without a court order just to spend time with his daughter and not bring her back. He could ( as I learned ) not pick her up from day care unless the mother has stipulated that he has permission to pick her up.
Something to watch out for:
If she allows him to come over to her house and visit with thier child and takes her there is nothing the police will do without a court order. Then she would have to file for custody and that could take months. She might be kept from her daughter that whole time. Then when the court date arrives he could say it would be too tramatic for their daughter to go from living with Dad to living with Mom. Courts will take into account where she has lived most and most recently when deciding. This is probably the worst case, and I am not sure how accurate this is adivce is, but just to let you know how serious it is for her to file. I would tell her to file without a lawyer, and if he puts up a fight then hire a lawyer. Don't spend money you don't have until you are sure you are going to have to spend it.
 

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