Got together with girl who was separated with divorce pending. Had a child with her before divorce was final. The hospital said i can't sign the birth certificate, so my names not on it. They said my daughter was a product of there marriage. My daughter is now three and her mom has moved her into her grandparents with her 5 year old brother. Mom is never there, shes been living with her new boyfriend(s) for about a year. Do i have any rights? I have my daughter for a week or more at a time at least every other week. When i take her back i rarely ever see her mom. When i ask my daughter if she spent any time with her mom in the week or so that she was there, she tells me "no". Mom has been partying a lot. Do i have to take my daughter back to her grandparents if she doesn't want to go?
Family Law Attorney
Under California paternity law, a child conceived during the marriage is conclusively presumed to be the child of the married parents. This presumption can be rebutted during the first two years after the birth of the child by evidence of DNA testing. The Court accepts DNA paternity testing as conclusive evidence of paternity. This presumption is the same even though a divorce was pending because they were still married at the time of the child's conception.
Unfortunately, your question mentions that your daughter is now 3 years old. Therefore, you may no longer rebut the presumption.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.
Divorce / Separation Lawyer
I'm very sorry for you and your daughter, and I hope that you are able to find a good family law attorney who can assist you with this matter. She seems quite lucky to have a father who cares so much about her and spends a lot of time with her.
I understand completely why you're confused and uncertain of what to do. This is a very tricky area of law, and one that isn't completely settled yet. I'm going to be honest with you: once your daughter is over the age of two, you're possibly in for an uphill battle if the mother refuses to acknowledge that you're the father. That being said, with as much time as you spend with your daughter and the relationship you have with her, it's certainly a battle worth fighting. I also think that this is something you need to do sooner rather than later.
You will want to open a case under the Uniform Parentage Act, and your case will be classified as a paternity action (where the two of you were never married). You will acknowledge that you are the father of your daughter by opening this case and you can then file a motion requesting formal custody and visitation rights.
Right now, you're in a difficult position, because there is no piece of paper out there definitively stating that you're the father. Therefore, it is very likely in your best interests to establish your parental rights through the legal system as quickly as possible. Good luck!
Child Abuse Lawyer
I agree with Attorney Lowe. There are some very strong facts in your favor. The presumption of paternity may be rebutted if the father was not co-habitating with the mother at the time of conception. There are other factors in your favor as well. Please try and find a family law attorney who is familiar with paternity issues. Your daughter deserves to be with a father who cares as much as you. Good luck.