If a single mother gives birth to a child, what forms must be filled out in order to give that father the right to custody of the child?

I thought that the male only becomes the presumptive father if the male is a) married to the mother, b) fills out the voluntary paternity registry forms at the hospital, or c) petitions the court to establish paternity and succeeds.

So here's the scenario we've got:

Man and woman are not married. Woman has a baby. Man does not attend the birth nor address paternity issues at all. Man takes an infant from the child's mother. The mother did list the man on the birth certificate.

Mother comes in crying saying she hasn't see her 10 month old baby in two days since she allowed the man to take the child for a visit to his mother's home.

Police agency tells her it is a civil child custody matter.

If he has no rights to this child other than the mother listing him on the birth certificate, how is this any different that a babysitter who runs off with a child?

[This message was edited by Philip D Ray on 06-08-05 at .]

As you can see, I am not a lawyer, but under 160.204 of the family code, the guy is not the father.

In order to get any rights he and the mother need to fill out the Acknowledgment of Paternity.

I guess he could always fight to establish paternity if he were to be brought up on kidnapping charges. Also see 160.601 to see what he would need to do to adjudicate parentage.

Of course if he is found to be the father, the court may order 10 months of back child support then the mother could try to get him put in jail anyway if he did not pay.

and I have some concerns about your ability to have a successful criminal prosecution for kidnapping or unlawful restraint when the mother of the "victim" (a) named this man as the father on the birth certificate, and (b) let the child go with this man to see his mother. It sounds as though she thinks he is the father (or at least thought so till he turned out to be a heel). I think that would give him a pretty good chance at the defense listed to both kidnapping and unlawful restraint.

On the other hand, if this were a purely civil matter, and the mother was trying to get child support out of this guy, I know for a fact that merely listing him on the birth certificate is not going to do the trick.

What about Interference with the Rights of Guardian of the Person (Pen. Code sec. 25.10)? The natural mother, as long as she is living is Guardian of the child's person. (Prob. Code sec. 676(a)). This guy has not been adjudicated or otherwise presumed or established as the father, so he has no guardianship rights. It might at least be enough to get the police to go retrieve the child.

Having previously worked for Legal Aid, this sounds like a great case to refer to them to handle.

Naming him on the birth certificate means nothing. The police will and should get the child back with out regard for who dropped the child off at whose home. The father is (legally) nothing more than a babysitter at this point.

I respectfully disagree. The mother and father of a child have equal rights to the child until they have gone to court and a court has named one party or the other as the primary managing conservator (or sole managing conservator). Just because it's easier to prove she's the mother than it is to prove he's the father, doesn't take away any rights he has as father. She needs to take him to court in a SAPCR action as soon as possible. She should have already if she knew he wasn't being an involved parent.

You are all hitting on the points we've already discussed here. There has to be some sort of balance to strike between the father being a 'legal stranger' and not responsible for child support and the criminal culpability questions.

Jim, I agree, I get hosed in front of a jury on this. I like the idea about guardianship. I'll go read those suggested sections.

[QUOTE]Originally posted by S Elliott:
I respectfully disagree. The mother and father of a child have equal rights to the child until they have gone to court and a court has named one party or the other as the primary managing conservator.[QUOTE]


If you are speaking of ethics, yes he should have a right to see his child, but legally he is not the father because he has met none of the requirements for either the presumed father or the acknowledge father. The court does not need to name a primary conservator because the law already has. If he were to file for adjudicated parentage, then the court would issue a temp order with the conservatorship outlined.

Yes, a mother and FATHER of a child generally have equal rights. The problem with that statement in the context of the issue presented, is that the man in possession of the child is NOT the father (in a legal sense) at this point. Right now, the man claiming to be the father of the child has the same legal right to possession of the child as you or I do -- none. That being said, law enforcement telling mom this is a civil matter is a cop out (pardon the pun). Yes, there is a civil remedy, but that does not mean that law enforcement should fail / refuse to act. After all, the same argument could be made that there is a civil remedy if your spouse is murdered - just go file a wrongful death suit - but you don't see police refusing to take action in those cases. The civil "remedy" presents the additional problem of time; how long will it take before Mom gets the child? Would I take a kidnapping charge to the GJ under these facts - NO. But I'd definitely have a friendly conversation with the Sheriff or Police Chief and let them know their assistance in getting the child to Mom would be appreciated.

He has no rights as a father, and if the mother only gave him the right take the child on a limited visit when he fails to return the child at a designated time couldn't that be akin to abducting the child since the term he was given permission to have the child has expired. I wonder if it would fit under 25.03 because it appears that some judgment must have been issued or civil action was pending regarding the custody in order for it to apply. Further, I am not so sure that 25.10 fits because 676 talks about the guardian of a minor is governed by this section, and infers the the mother is the natural guardian. If a relative, say an aunt or grandmother, took a child with permission for a visit but failed to return the child at the end of the visit what crime would they be charged with? In this case he has no legal relationship with the child. If kidnapping does not fit, and interference with child custody does not fit, is there any crime? It seems that any one of the above sections might have some difficulty in proof to fit the statute.

[This message was edited by pkdyer on 06-10-05 at .]

I agree with S Elliott. IF he is the father then he has as much right to the child as Mom. If he is not the dad then he is in trouble.