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Can I file for full custody if the father has been absent? PLEASE HELP!

Palo Alto, CA |

My child's father is not on the birth certificate. My child turns 4 this year and he saw him 3 times the first 4 months he was born and thats it. He does not pay and he is not around at all. Can I file for full custody without him present in court? Keep in mind, the father has been in jail before, does drugs, steals, gang member,etc... he's just not the right father figure. He is also illegal, so that gets me very paranoid that he'll just take my son and leave the country.. Should I file for full custody just in case?? To save my child and myself for later down the line??? PLEASE HELP! I currently live with my parents, I go to college, I don't drink or do drugs... I hope this helps..??

Attorney Answers 2


It doesn't matter that he's not on the birth certificate. However, courts are extremely leery of depriving a child of a parent, even if an absent one, and even one with a criminal record as long as it doesn't involve abuse. Fortunately, it's now become more difficult than in the past to take a child across a border without proven consent of the other parent than it once was, which gives you some protection -- but only if he uses a legal crossing point with authorities there. I gather you're afraid that he won't do that.

Given the large number of factors you have here, you certainly appear to have a case for majority physical custody, if not sole custody. The best thing you can do, however, is to consult a lawyer in your area (preferably your own county) who has handled cases involving an immigrant parent before.

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Yes, you can file for primary custody of your child based upon the fact that he does drugs, steals, has been in jail, etc. You already have custody, but filing paperwork (a paternity action if you were not married) will likely trigger a response from him requesting that he have visitation time. Right now, it sounds like he would only be given a monitor. Further, right now, you do not sound like you have any court orders requiring you to give him any visitation time. You could contact the District Attorney and go after him for child support, and then he will likely respond with his own paternity action requesting visitation time. Talk to a family law attorney about what your options are.

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