In case the biological parent and the non-biological parent are on good terms, custody problems will not be an issue. However, what happens when the relationship between the biological and non-biological parents starts to deteriorate?
Alternatively, what happens when both biological parents are absent, unfit or unwilling to take care of the child? In such cases, the child’s guardian will need legal standing to take proper care of their child’s education, health care and other needs.
The non-biological parents likely wonder about their rights and options regarding custody. While non-biological parents may not have traditional parental rights that give them physical and legal custody of the child, they might be able to petition the court for equal custody.
Can a Non-biological Parent Get Custody?
A biological parent will almost always enjoy special rights to child custody over a non-biological one. Nevertheless, in certain situations, the court may grant the non-biological parent custody rights, even over the biological father or mother’s objections. Child custody court hearings that involve non-biological parents are usually complicated.
The court may award a non-biological parent custody if:
• The court finds the biological parent unfit.
• The court determines that the biological parent is not available because of death, abandonment or other reasons.
• The court determines that living with the biological parent is not in the child’s best interests.
In general, the court considers giving custody to a non-biological parent who has shared a sufficient amount of time with the child whom they consider as part of their family.
Situational Aspects
For example, consider that a woman marries a man who already has a child from a previous marriage and that child lives with them full time. The child will view his father’s wife as his stepmother. In case of a divorce, automatically, the kid’s custody will remain with the biological father. However, if the father cannot take care of the child for any reason in case of his disappearance, imprisonment, or death the court might grant the stepmother custody rights if the biological mother is unavailable for any reason. Keep in mind that the biological mother would be the next in line for her child’s custody, before the stepparent who wishes to provide a loving and caring home.
Approval of Child Custody
The biological parent must approve all arrangements that grant non-biological parent visitations or custody rights if they are available and suitable to make decisions. In these cases, all concerned groups can reach an agreement peacefully and suitably, with both parents agreeing and approving the set-up. Parents should always consider the child’s best interest and avoid arguments and drawn-out court battles.
What Are the Custody Rights of a Non-biological Parent?
In most cases, the court will give non-biological parents the same parental rights as those of biological parents. As long as the law recognizes a non-biological parent as the child’s mother or father, the court may grant them full legal and physical custody. This custody right enables the non-biological parent to decide the child’s education, healthcare and habitat.
In addition to child custody rights, non-biological parents can also practice numerous other parental rights, such as:
• Form and maintain a relationship with the child through visitation rights
• Make decisions about fundamental issues that influence the child’s upbringing
• Pass down a property to a child through inheritance
• Obtain legal counsel for a child
• Enter into a contract on behalf of a minor child
• Decide on placement for a child. (e.g., choosing a guardian if the non-biological parent becomes incapacitated or deceased)
It is important to note that rights may vary between state statutes.
How Can the Non-biological Father Be the Legal Parent?
Non-biological fathers, including stepfathers, long-term partners and same-sex partners, develop a deep bond with their non-biological children. In some cases, a father might take time to discover that the child is not his own. Fortunately, most of the states offer non-biological parents visitation and parental rights.
For the court to grant a non-biological father the status of a legal parent, he should offer proof of one of the following:
• The name of the non-biological father on the child’s birth certificate
• The legal adoption of the child
• Acting like the child’s father for an extended period
Since the court considers non-biological fathers as legal parents under particular circumstances, it can grant them, in such a case, the same parental rights as biological fathers. The non-biological father rights will make him liable for making payments and adhering to child visitation schedules if a dispute arises over child custody or child support.
This means that after the court considers the best interests of the child, it will allow the non-biological father to get custody orders or child support. In a state that grants parental rights, non-biological fathers need to demonstrate a solid relationship with the child. However, if the state does not grant parental rights, non-biological fathers would still qualify for visitation. Some states, like Utah, acknowledge that a child can have multiple legal parents.
If the Father Isn’t on the Birth Certificate What Rights Does He Have?
A father who is not named on the child’s birth certificate may still have various rights. For example, if they were appointed as the child’s guardian, legally adopted or fostered the child, or became a de facto parent, then they may have many of the same rights as a person who holds legal parental status.
Other factors that can affect the types of parental rights a father has even if they are not listed on the child’s birth certificate include the emotional bond they have with the child, whether they helped to raise the child, how invested they are in the child’s life, and whether they make decisions on behalf of the child. If the father can prove any of the above, then they may have standard parental rights (e.g., visitation rights, legal custody, etc.). If they cannot prove some of the above factors, but wish to obtain parental rights, they can take a DNA test to challenge the paternity of the person listed on the child’s birth certificate. It should be noted, however, that courts assign greater weight to the name on a birth certificate than they do to the results of a DNA test.
Fathers who cannot prove any of these scenarios may not have any rights over the child until they bring a successful challenge in court. Even then, a court may still rule that they have no rights to the child.
Can a Non-Biological Father Be a De Facto Parent?
A “de facto parent” typically refers to a person who is not biologically related to a child, but has provided for the child’s basic needs or regularly cares for that child. This can include an adult who interacts with the child on a daily basis or has developed a parental-like bond with the child. In other words, this person assumes the role and responsibilities of parenting a child when that child loses one or both their parents.
Also, in some states, like Utah, the law may allow for a child to have more than two legal parents. Some examples of persons who may take on the role of a de facto parent include the child’s grandparents, close relatives, stepparents, and non-relatives who already have a bond with the child. Non-relatives are usually only chosen if a close relative cannot be located or if placing the child with them would be in the child’s best interests.
Thus, if proven, a non-biological father may also fall under the categories of persons who can become a de facto parent. In order for a non-biological father to assume the role of a de facto parent, they must consistently demonstrate the following traits: At some point they lived with the child; They have a close relationship or emotional bond with the child; They accepted parental rights and responsibilities over the child; The amount of contact the de facto parent and child had in the past; and That the biological parent encouraged the de facto parent and child’s relationship. One final thing to keep in mind about de facto parents is that the rules and requirements may differ based on jurisdiction. Thus, although the factors listed above are common traits found among successful cases, this does not mean they will be available or will apply to every case.
Can a Biological Father Terminate a Non-biological Father’s Parental Rights?
It is challenging for a court to terminate parental rights, particularly in cases where the biological father shows no interest in raising the child in the first place. However, a biological father can file a paternity claim in family court and terminate the non-biological father’s parental rights.
In case the court agrees to hear the case, it offers the biological father a chance to present his arguments and evidence (i.e., paternity or DNA test) that supports his request. Yet, the court does not terminate the non-biological parent’s rights just because a father can prove their paternity.
For instance, the court may permit the non-biological father to preserve his parental status if the non-biological parent is a better parental figure than the actual father or if it would be against the best interests of the child.
What if the Father Is Not a Legal Parent?
Unfortunately, if the court does not consider the father as a child’s legal parent, the issue becomes more complex. With enough proof, some states might consider giving the non-biological father visitation and custody rights in this case. However, in other states, courts might not award the non-biological father any rights at all.
Applying the Doctrine of Equitable Estoppel
According to Webster’s New Collegiate Dictionary, the word estoppel means “a bar to alleging or denying a fact because of one’s own previous actions or words to the contrary.” Equitable Estoppel is used in the interest of fairness to prevent an injustice to someone who relied on something in good faith. This could be the non-biological father or mother who held him or herself out to the world as parent of the child.
The most common situation in which the doctrine of Equitable Estoppel has been applied in custody and visitation matters, is when the mother attempts to state that the husband is not the father, even though the child was born during the marriage and both parents were having sexual relations with each other, at the time of conception. At the same time, both have held the child out to the world as the child of the husband and the husband has assumed all responsibilities of fatherhood.
The doctrine would also be applied when the father seeks to end child support and paternity after he learns he is not the child’s biological father. The father, in this instance, would be estopped from asserting lack of paternity when he had never before disputed or questioned this fact.
The doctrine has also been used in situations where the parents were never married, but the father has consented to paternity. If, on learning that he is not the biological father, he asserted lack of paternity for the sake of ending child support payments when clearly he had never before disputed or questioned that fact, he would be estopped by the court. Years ago, this doctrine was also applied to prevent a child from being bastardized and losing inheritance rights.
Should I Seek an Attorney to Assist with a Child Custody or Parental Rights Case?
As a parent, it is important that you understand the legal rights you have to raise and maintain custody of your child. Thus, if you need assistance with a child custody or parental rights issue, it may be in your best interest to speak to a local child custody lawyer immediately for further guidance.
An experienced child custody lawyer can discuss the different types of parental rights you have under the law and can ensure that those rights are protected. Your lawyer can also help you navigate the various requirements and procedures for a child custody or a parental rights case, such as drafting legal documents to submit to the court, filing the necessary legal paperwork, corresponding with opposing counsel, and reaching a fair solution. Finally, if you believe that the other parent is unfit to raise your child and that you should retain full custody of your child, your lawyer can file an emergency protective order with the court to make sure that your child is safe.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
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