I Know This Has Been Said Over and Over Again But....

[Max]

I know this has been talked about over and over again on other threads but I thought maybe others can read this and chime in and clarify...

Very recently my husband and I began going through the adoption process for DH to adopt my son (who he has been raising since he was a baby). I have a court order for child support from the birth dad but nothing in regards to custody or visitation or termination of birth dad's parental rights.

We paid a hefty fee to meet with one of the (allegedly) best family lawyers in MN and we were told (I'm paraphrasing here) that our state automatically grants/favors birth mothers sole physical custody until the court establishes otherwise. Now I'm sure I'm off on the wording but the message was the same. I asked over and over again to clarify cause this was a big deal to me!

Meaning that, even if birth dad would not consent to my husband adopting our son and we lost our case, and birth dad's rights were not terminated - I have no legal obligation to allow birth dad to see my son. Not until birth dad takes me to court and an order is established regarding visitation/custody.

Maybe this is a little different than what has been discussed here on the forum, as far as always allowing a parent to access their child unless a court order says otherwise.. but it sounds to me that legally, birth moms may have rights (depending on your state) to restrict the birth dad from accessing the child without a court order. Maybe I'm totally wrong here. Maybe there are other factors the lawyer didn't mention. Just how the two pieces seem to fit together to me.

I'm not saying it's necessarily right. I'll see if the lawyer we ended up hiring can give input on this.


On another note..
I totally understand providers not wanting to get in the middle. It can be ugly and crazy. I don't blame you.

For me though, it made a world of a difference having a provider who was willing to call me if birth dad were to have shown up. Birth dad was unpredictable (on methamphetamine), had a criminal history, and hadn't seen my son in almost a year by the time he started care. Legally speaking, his rights were not terminated. It's very difficult to terminate parental rights without having a suitable parent willing to take their place, so I was not in a very good position to get that ball rolling at that time. It ended up never being an issue. But if he had ever shown up to get my son, it could have been bad. Court orders take time, money, and are not easy. Our legal system is not perfect. (I could get really deep here - you may say well, not my fault, shoulda known better who to procreate with. Yes, I should have. I was young and naive. He wasn't on meth at the time but he wasn't a good person either. But my son's safety shouldn't be jeopardized b/c of a past mistake I made. I can't predict what other people may do.)

I want to say she may have even agreed to not release my son to birth dad, which would line up with what the lawyer told me a few months ago.

Before everyone jumps on her for doing something illegal, I'm not 100% sure she said that... but I do seem to recall a convo with her and her bf in which we were discussing these laws in MN and how they do favor birth moms right off the bat...

Plus, the preschool my son is at immediately put birth dad on a 'do not release' list when we told them we were initiating a case for adoption and we weren't sure how birth dad may react. This was without a court order establishing any custody, termination of rights, visitation, etc.

I respect a provider's decision to stay out of things and acknowledge there are very good reasons for it. But, if you are a provider willing to do what mine did, it makes a huge difference to some parents!

Anways, whew! Sorry for such a long post! Just some food for thought

[Cat Herder]

I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.

Definitely talk to the lawyer, again.

Your provider would have been covered the first time as his (dads) identity had not been established with her, yet. As far as I know that only works once though.

[Max]

I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.

That's where I think it gets muddy. Parental rights establish the parent-child relationship. If you lose your parental rights, then you are no longer the legal parent/guardian of that child.

But of course, the child can reach out to the birth parent when they are older I suppose.

I actually did a research paper arguing the ways in which our legal system is flawed by favoring parental rights instead of focusing on what the child's rights should be. This is why reunification is almost always the #1 goal of foster care.

[daycarediva]

I am of the understanding that the CHILD has a legal right to both parents. Visitation is not about parents rights, it is about the childs rights.

Definitely talk to the lawyer, again.

Your provider would have been covered the first time as his (dads) identity had not been established with her, yet. As far as I know that only works once though.

Yes. I had a dcb with a father in prison. Mom had sole custody. Dad wasn't on ANY information. He came to pick up dcb one day. I refused to release him. He was a stranger to me. He was a stranger to dcb. He wasn't on any pick up list. He came back with paperwork and the police the following day but dcm had kept him home until she could work it out in the court. I legally would have HAD to release him to the father.

Until rights are terminated (or there is a court order on file), regardless of who has custody, I HAVE to release a child to his/her parent if asked to.

[Max]

Until rights are terminated (or there is a court order on file), regardless of who has custody, I HAVE to release a child to his/her parent if asked to.

See that's where I'm wondering if there are different laws at play.

Like a birth mom may have sole physical custody (w/o any court orders) and deny a birth dad visits, but regardless, a provider must still release the child to the birth dad.

It seems like they go against each other but eh, wouldn't surprise me.

[Cat Herder]

See that's where I'm wondering if there are different laws at play.

Like a birth mom may have sole physical custody (w/o any court orders) and deny a birth dad visits, but regardless, a provider must still release the child to the birth dad.

It seems like they go against each other but eh, wouldn't surprise me.

I understand it different.

If the birth mom does not have a court order saying so, she does not have sole custody. She may have literal "physical" custody, but not legal sole custody.

She has no legal right to withhold the child from the other parent. Her only power lies in the father believing she does. If he picks up the child from daycare, he can also withhold the child while filing for a temporary hearing.

If called, the police could give the child to which parent was acting the most stable at the time of the call. It is the most rational approach. They don't want to be involved in family court matters.

Without papers, both parents are of equal legal standing.

[Max]

She has no legal right to withhold the child from the other parent.

That's the exact opposite of what the family lawyer said. I was told I have no legal obligation to allow any visits.

Without papers, both parents are of equal legal standing.

Based on what I was told, that's not true. At least, not for my state.

[daycarediva]

I understand it different.

If the birth mom does not have a court order saying so, she does not have sole custody. She may have literal "physical" custody, but not legal sole custody.

She has no legal right to withhold the child from the other parent. Her only power lies in the father believing she does. If he picks up the child from daycare, he can also withhold the child while filing for a temporary hearing.

If called, the police could give the child to which parent was acting the most stable at the time of the call. It is the most rational approach. They don't want to be involved in family court matters.

Without papers, both parents are of equal legal standing.

This is what I was told by the police as well. It HAS to be a court order.

[Max]

This is what I was told by the police as well. It HAS to be a court order.

I'll see if I can get more info on this for sure. It's just so odd b/c I asked several times to make sure I understood what she was saying. I'm pretty sure she didn't say "you have sole physical custody" but she definitely was saying I had no legal obligation to allow visits. She's from a very well known firm and has been working in this field for twenty some years. Another lawyer said her firm was the best in the business.

So weird :confused::confused:

[Cat Herder]

"Visitation Rights as a Father

Parents have a fundamental right to raise and love their own children. Even if you don't get primary custody, you’re still entitled to visit your child on a regular basis. But there are some instances where a court will restrict parental rights. For example, if there's a history of domestic violence, neglect, or abuse, a judge will order supervised visitation with the child. In extreme cases of abuse or neglect, a judge might find that cutting off all contact and terminating parental rights would be in the child's best interests.

You and the child’s mother can reach your own visitation agreement, or you can leave it up to the court to decide. Either way, a judge will turn the parenting schedule into a custody and visitation order, which you and the child’s other parent must follow. For example, the child’s mother can’t prevent your visits or give you less time than required under the order. Your obligation as a father is to follow the terms of any custody order, and take advantage of whatever visitation or custody you’re entitled to. If you encounter serious problems with visitation or the child’s mother prevents visits, you can ask the court to intervene. A parent who refuses to abide by a custody order can be held in contempt of court and can face fines or even jail time."

http://family-law.lawyers.com/paternity/shes-your-child-too.html

[Cat Herder]

"Legal custody gives a parent authority to make decisions about things that affect the child's welfare, including education, medical care, and religious upbringing. Physical custody refers to the child’s living arrangements. Mothers don’t have any extra entitlement to custody of their children: As a dad, you're on equal legal footing."

Sorry, left out the first part. You know, the point I was making and all. :: I thought it copied and pasted.

[mommyneedsadayoff]

I'll see if I can get more info on this for sure. It's just so odd b/c I asked several times to make sure I understood what she was saying. I'm pretty sure she didn't say "you have sole physical custody" but she definitely was saying I had no legal obligation to allow visits. She's from a very well known firm and has been working in this field for twenty some years. Another lawyer said her firm was the best in the business.

So weird :confused::confused:

I think your lawyer is correct. Visitation at the discretion of a parent versus court ordered visitation are very different things. He will need to go through the courts. Once a judge rules on it, you won't have a choice, but until then, I would keep him on the "do not release" list.

[cassiesue]

Well I live in Georgia and used to work as a paralegal. I also assist people, by word of mouth only, with preparing their legal petitions so that they can file them pro se.

Our law here is quite clear in so far as children born out of wedlock are concerned. Absent an Order legitimating the child, the mother has sole legal and physical custody of that child.Even if he signs the birth certificate and pays child support he still has zero rights.

I have enrolled several children in this situation and will allow the father to pick up a child if he is on the list. However, if the mother removes the privilege, I will NOT release. I will call the law and had to do this very recently when things got ugly between the parents of one of my dcbs.

However, if the parents are married, even if they are in the process of separation; absent a restraining order that specifically forbids contact I can not legally prevent either parent from picking up their child.

[cassiesue]

Max I just checked and the law in Mn is quite similar to Georgia's. If you were not married to the child's father then:

Mn statute 257.541 states: "The biological mother of a child born to a mother who was not married to the child's father when the child was born and was not married to the child's father when the child was conceived has sole custody of the child until paternity has been established under sections 257.51 to 257.74, or until custody is determined in a separate proceeding under section 518.156."

Therefore just as in Georgia a father can be ordered to pay child support to said child and still have zero right of access to that child.

[Blackcat31]

If you hired or consulted with an attorney keep in mind they will tell you what you want to hear....business is business

As a MN provider I can tell you that the ONLY way I can legally deny a biological parent access to their child NO MATTER what the other parent says/wishes is if I have legal paperwork that specifically says I can not allow that person to have access to the child.

IF your son's biological father is listed on his birth certificate, I believe he DOES have rights as the child's LEGAL father. You DO NOT have sole custody UNLESS you have officially filed for it in the courts. Otherwise you are simply the parent that has physically raised your son but not having contact with your son or having any court ordered visitation does NOT automatically exclude the biological father from contact or from exercising his rights to pursue contact/visits etc.

IF the biological father chooses to give up his parental rights (which IME, isn't usually allowed....too many fathers doing so to avoid child support etc) then and only then can your son be adopted by your husband. I do believe in some cases the bio parent can give up rights IF there is another parent (your husband) wanting to take over. But normally, fathers can't just give up their rights as that usually leaves the state as acting "father" and having to financially support said child. kwim?

Anyways, from my understanding MN is NOT a state that favors mothers....as a matter of fact I read not too long ago that MN is one of 10 state's that heavily support fathers and their rights.

I have 2 DCK's right now where the family had similar situations as yours...one now has 50/50 custody (the 4 yr old DCK never had any contact with the father at all until then) and the other family, the father actually got custody with the mom having visitation rights and no, she isn't on drugs or unable to support herself or her other children...dad either had a better lawyer or really does have the means to offer the child a more stable home. The father has 70% primary physical custody and the mother has 30%.... up until court, the child lived 100% with the mother and only visited the father.

As for why your preschool was able to put your son's bio father on the do not pick up list I don't know...but if it came down to him showing up there with a birth certificate, the preschool would be in trouble for denying him his child. I know alot of daycare provider's that will say they won't let a child go but it doesn't mean they are doing so legally.