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Biological father vs non-biological non-adaptive mother

Cumming, GA |

I am biological father of my daughter who is 6 years old.
My wife is not genetic((not carry, not her egg) mother of my daughter.
We used a woman overseas to be a surrogate as well as egg donor using IR procedure.

We did not adopt the child in US or anywhere.
She was born after our marriage.

Of course, we live in the same home since she was born.
If we go to court, what are my chance to get sole custody?

Attorney Answers 2

Posted

A child born during a marriage is presumed to be the legitimate and legal child of the parents who are married. Without an adoption, that presumption is rebuttable. However, the Georgia Supreme Court has recently ruled that the legal rights of a parent (in the case it was the father) cannot be terminated in a divorce case, but those legal rights must be terminated in Juvenile Court. If your wife's legal rights are not terminated, she has the same right to custody as you do. Your chance of getting sole custody is no greater than her chance to do the same. This is a very difficult area of the law, and is changing all the time. You need an experienced custody attorney to represent you, and one who will not be surprised by these changes.

I am exclusively a family law attorney, practicing primarily in the metro Atlanta, Georgia trial courts. However, I handle appeals from anywhere in Georgia.

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Posted

You're in a huge legal grey area, as even though Georgia presumes you and your wife are the parents, that presumption can be rebutted by medical evidence, meaning other people outside the marriage could claim parental rights, albeit unlikely. In a normal situation, odds are you and your wife both have a chance at custody, and given that sole custodyu absent parental misconduct is rare, your desire may be very different than the result.

Regardless you need a good lawyer if a divorce is planned.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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