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Is the biological father able to get visitations or custody?

San Jose, CA |

My daughters biological father was never there for me during pregnancy, due to him leaving me for someone else. He has never met nor been apart of her life, she is three years old now. My current husband has been in my daughters life since she was 13 mos old and considers him her dad. Since he is now required to pay child support, he has been texting my phone and messaging me on Facebook making me feel intimidated. He is wanting my husband to adopt/take over rights and arrears and if my husband does not do so he is going to file to get partial custody for six months or more. His other option is for me to call child support services and zero out the balance and if I don't call by a certain date he will go for custody. Is there any chance her biological dad would get visitations or custody?

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Attorney answers 4


He won't immediately get partial custody for six months or more, but he can try to work his way up to it. Even if you can prove that he is only threatening all of this in order to get reduced child support, ultimately, as long as he is the child's father, he will get visitation.

If your husband is willing to adopt your child, then you should terminate the bio's parental rights and have your husband do a step-parent adoption.

I can be reached at 714-442-1522 if you have further questions. Before accepting any answer as a final answer, you should have your case reviewed by an attorney. No attorney on Avvo has read your paperwork and therefore cannot give a completely valid answer suited to your case.


Consider closing your case with child support, if the thought of sharing custody with this man is too horrible to contemplate. In the end, it may not be worth it to you and to your daughter.

If you really, really need the money, though, then stand by for a fight. It will be a challenge for you, since the default preference of the courts is for a child to have a relationship with their parents. The key will be to show that he neither has one nor desires one, that it's only about money for him.

Definitely save those messages. You can certainly use it to demonstrate his insincerity in why he wants visits.

In the end, your main argument has to be that your child is not a piece of property, to which someone has rights, but a person with her own needs, and those needs are for stability and continuity in her personal relationships. If you can demonstrate that bio-dad has no actual interest in the child's welfare, then you may have a shot at convincing the court that any visits with this man would NOT be in the child's best interests and may, in fact, even be harmful to her.

But this may be an uphill battle, so consider my first point.

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To date your ex has exhibited no parenting skills and no interest in the child. He is an absolute stranger to the child at this point and time. The court would have to establish a lengthy reunification program with short supervised visitations to start. Based on the nature of your facts I would also request that he complete parenting classes before the commencement of visitation. For the short term the court is pretty much going to perpetuate the status quo. No, he’s not going to step in and get six months joint custody with your child. For the best interests of your child I certainly recommend you retain the services of a very experienced family law attorney.

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You may move to terminate her father's rights at this point and I believe you have a strong case for it. But to do so, you would have to NOT accept money from him. In other words, terminate the ORS case. Now if you want the money, but you don't want dad around as much (as he clearly is not interested in the child but rather the control over him with ORS and he wants to put the hurt back on you), then let him take it to court when you don't let him see the child because she does not know who he is. The court can require that he take parenting classes, go to therapy, etc. and have supervisded parent time with the child. You can ask that if a psychologist so reports, the child should not see this man because it is too traumatic and she doesn't know him. Do not be intimidated by him. You have the facts on your side. But I would get rid of the guy and his money. A happy, peaceful life for you and your child and spouse sounds like the better deal.

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