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I come before you once again with a fictional scenario for which I'd like some factual information. We're in the legal realm this time. I know only a little law (for instance, I'm pretty sure it's illegal to run someone over with your car without giving them your insurance information beforehand), so feel free to use small words in your answer.

Scenario: a woman is pregnant and does not want to keep the child herself. She has agreed to let the father, her ex-boyfriend, take the baby. For what it's worth, he says she's free to visit anytime, though she claims she won't want to. What do they have to do, legally, to cement the custody decision? I assume something needs to be signed. Anything more?

To confuse matters, they're both Americans, but the child is born in England. Will that matter?

Further confusing things: ex-boyfriend/current father now has a boyfriend of his own, who, all parents agree, will be co-father. Is this easily covered in the agreement? Does any state (or national or international) agency ever have to step in?

Extra credit question: there's a phase in which it seems like the two guys may have to fight the birth mom for custody. What might they find out if they asked lawyers about their chances of winning? Or would they be better off asking social workers? They live in Seattle, by the way. Presumably that will play out differently than a similar scenario in Mississippi. Assume the mother is basically fit but a smidgen unstable, and would be raising the child alone.

That's all for now. If you read my posts carefully enough, you could piece together the plots of all my novels!


( 16 comments — Leave a comment )
(Deleted comment)
Nov. 20th, 2009 12:32 am (UTC)
Sad indeed... but I'm pretty sure the west coast states in question do allow it...
Nov. 19th, 2009 11:15 pm (UTC)
This is based on Colorado law, so may be different state to state. Family law is one of those things that varies widely. However, since the ex-boyfriend is the biological father of the baby, he is entitled to custody, and would not have to adopt the baby. Technically, once he possesses the baby, he could keep the baby without any formalization of their agreement. Mom could, though, accuse him of kidnapping the baby, or take their battle into court to fight for more custody.

The two can make a mutual agreement -- essentially a contract -- stating that dad will have custody. This will protect dad to some extent should mom ever decide to argue the question. Ideally, dad should get court approval on the agreement, as that will solidify his case and protect him even more.

Court approval would look like submission of a bunch of forms, and then a hearing. At the hearing, the judge would interview both parents to determine that this was what they both agreed to, and what they felt was best for the child. The judge might then decide that an in-home study is necessary, to determine what is best for the child (most family law courts use "best interest of the child" as the standard of review).

If the in-home study is NOT necessary, the judge would then likely approve the agreement. If an in-home study were necessary, a guardian ad litem (a neutral third party, appointed by the court to represent the best interests of the child) would then be appointed to conduct the in-home study. After in-home study, the guardian ad litem would testify to the judge at a second hearing, at which point the judge would decide whether to approve or disapprove of the custody decision of the parents.

Usually, when an amicable decision is reached outside of court, and the parties are merely seeking court approval, if there are no extenuating circumstances to raise the court's suspicions, the court will approve without further questions or in-home study.

The birth in England is irrelevant, as any child born to U.S. citizens, no matter the place of birth, is automatically granted U.S. Citizenship.

As for the same-sex partner ... it is not necessary for the same-sex partner to be covered in the agreement or in any other way, unless the partner needs to have legal guardianship over the child. In this case, the contract between mom and dad could also grant the partner guardianship, but this would likely be one of the things that triggers an in-home study. As imaplatypus wrote above, many states are resistant to same-sex parenting. Should more than legal guardianship be desired, that is, if the partner wanted to adopt the child, then the partner would have to petition the court to grant a legal adoption. And again, many states will refuse the adoption in this instance.

An agency need not intervene, but the partner may want to consult an adoption agency, due to their experience with this sort of thing, if it's expedient to the plot.

Fighting the birth mom for custody: Biological parents have equal rights to full custody of a child unless a determination otherwise has been made by a court of law. This is why dad would want to get his agreement with mom approved by a judge in the first place. Should mom fight for custody, dad and partner would find out that their chances of winning are about 50/50. The court would take into consideration any factors that might affect the best interest of the child. This could include mom's instability; dad's same sex partner; keeping the child at the same school; keeping the child in a home he is comfortable in, among friends; the child's need to have a relationship with both parents; the child's relationship with grandparents; any other factor that might affect the child's well being. As you point out, in Mississippi, for example, the same-sex partner might be the defining element. In Seattle, probably not as much. But it will still be a factor.

I'd be happy to talk more at length with you about this, if you have any more questions.
Nov. 20th, 2009 12:32 am (UTC)
Excellent! Thanks so much. Great stuff. Follow up question: the mom is actually a California resident. Would we then be dealing with CA law instead of WA? Or both somehow?
Nov. 20th, 2009 01:00 pm (UTC)
The Uniform Child Custody Jurisdiction Act, which governs this issue in the majority of states, says that jurisdiction would rest in the child's home state. The child's home state is the one in which the child has been a resident for the previous six months. If the child has not been residing in its current state for six months, then the child's home state is the last one in which it did reside for six months and where a parent is still present.

This gets complicated since we're dealing with a newborn. However, here's some examples:

Mom lives in CA, dad in WA. Birth occurs in CA. Dad immediately takes baby to WA. Mom could probably require that the custody action occur in CA.

Mom lives in CA, dad in WA. Birth occurs in CA. Dad takes baby to WA, and nothing happens for six months, and then they go to court. Custody action must take place in WA.

Mom lives in CA, dad in WA. Birth occurs in WA. Any court action likely must occur in WA.

There's an argument that since a baby doesn't begin to reside anywhere until it's born, that no court can exert jurisdiction until it's six months old at a minimum, because it would not have been able to reside *anywhere* for the six months required by the uniform child custody jurisdiction act.
Nov. 20th, 2009 10:13 pm (UTC)
Complicated! OK, then in my story it could be even more difficult: baby of CA mom and WA dad is conceived and born in England. :) Might it do to have the dad & his boyfriend talk to a lawyer, and get told that it'll be a legal nightmare, and quite possibly a *Californian* legal nightmare, if they don't get custody arranged and signed beforehand? That'll give them extra motivation to convince her...

And thank you again! I'm always impressed when people have so much factual knowledge of useful things at the forefront of their brains. :)

Edited at 2009-11-20 10:14 pm (UTC)
Nov. 20th, 2009 10:35 pm (UTC)
Ultimately, if it were my client, I would counsel that they have a written agreement with mom and get it approved by the court of the state in which either parent resides, BEFORE baby is born. Since it's not a hostile action (i.e. no defendant, no plaintiff), jurisdiction would be proper in the state of residence of either petitioner.
Nov. 22nd, 2009 06:02 pm (UTC)
Cool. I can use all this. Thanks so much!
Nov. 19th, 2009 11:18 pm (UTC)
California and Colorado las seem remarkably similar in this area. Must be the eastern slope influence.

Nov. 20th, 2009 08:43 pm (UTC)
Must be! And actually, CA law may apply a bit, since my fictional mother character is from California...
Nov. 20th, 2009 12:04 am (UTC)
Um. IANAL, but I suspect it's illegal to run someone over with your car even after you've given them your insurance information. At least I hope it is :)
Nov. 20th, 2009 12:30 am (UTC)
Yes. It is. JOKE, fer cryin out loud.
Nov. 20th, 2009 01:53 am (UTC)
I'm fairly certain you could shoot him, though, so long as you yell "He's coming right for us" first, claiming it was self-defense. :-D
Nov. 20th, 2009 08:44 pm (UTC)
Yes, that is true. But you have to hand your beer to someone else first if you're driving.
(Since apparently emoticons have to be appended to jokes despite my wish that this weren't so...)
(Deleted comment)
Nov. 22nd, 2009 06:02 pm (UTC)
That's true. Why don't auto insurance companies mail those out??
Dec. 8th, 2009 11:19 pm (UTC)
How can a mother be deemed "fit" and yet "unstable" at the same time? Though it did happen to me. What if she was heartbroken? Does it matter in any senario? And what exactly does "smidgen mean to you to me, where I ask these questions like this? Becuase in the end all and be all of it all it kind of matters between a mother and her child. And are you certain the mother doesnt care... when the mother wont let go.That she'll keep coming back.
Jan. 16th, 2013 09:12 am (UTC)
Northern Kentucky Attorneys
Well, I think the mother is just used? And so the gays have the child of their own and try to have a real family of their own. This is such a sad story.

Edited at 2013-01-16 09:18 am (UTC)
( 16 comments — Leave a comment )