Custody negotiation can be a challenging time even in amicable divorces, and with two biological parents. For non-biological fathers, the challenge of proving paternity and obtaining custody or visitation becomes even more complex.
A father’s rights dictate that he should receive fair treatment during custody determination, even if he is not biologically related to the child. Proving this paternal role is often an area of frequent difficulty.
Working with an attorney experienced in fathers’ rights when trying to navigate custody as a non-biological parent typically results in more positive outcomes than in those cases without representation.
The legal pathways and considerations for a non-biological father to obtain custody of a child differ from those available to individuals who can complete a genetic paternity test.
However, by demonstrating a strong parental relationship and the child’s best interests, providing necessary documentation, and making a compelling case, fathers are able to secure custody of stepchildren.
Understanding De Facto Parentage
Laws regarding the factors that define someone as a “parent” differ by state. In Maryland, fathers must fulfill all four parts of a parentage test in order to be recognized as the “de facto” father—that is, the child’s father by default, regardless of lineage.
If a parent can prove de facto parentage, they then have the same rights as a biological parent in terms of obtaining custody and visitation.
Fostering a Relationship
In order to fulfill this first part of the de facto parentage test, fathers must be able to demonstrate that they intentionally foster a parental relationship with the child and that they consented to such a relationship. This allows stepparents who actively took on a parental role to have grounds for custody.
Residence
In order to attain parentage, a non-biological parent must have lived with the child. The residence need not be the father’s; for instance, a stepparent may have moved into the child’s house with the minor’s biological mother.
Compensation
Parents seeking de facto parentage must have established the parent-child relationship without expectation of compensation. Thus, live-in nannies and other similar individuals are not eligible to claim parentage.
Time
Fathers attempting to prove their non-biological parentage must have fulfilled the role of parent for long enough that they have developed a bonded, dependent relationship with the minor.
There is no minimum requirement in this area, but the court will expect documentation that indicates that the child views the potential parent as their caregiver and supporter (e.g., seeking the step-parent for emotional support, listing them as an emergency contact).
Contesting Parental Fitness
Another alternative option for non-biological fathers to obtain custody of a child is by contesting parental fitness. If a father cannot demonstrate sufficient participation to be considered a de facto parent but the child is not safe with the biological parent(s), the non-biological father can petition the court to reconsider custody on the basis of the wellbeing of the child.
The court will consider both the child’s safety and any exceptional factors. These may include:
- Evidence of neglect and abuse
- Abandonment
- A mental health condition that inhibits the parent’s ability to care for the child properly
- The intensity of the child’s desire to separate from the parent(s)
- The stability of the child’s life
Non-biological fathers who are not de facto parents become third party individuals on the same level as aunts and grandparents when determining custody. Therefore, when possible, all efforts should be made to prove fulfillment of de facto parentage first.
Proving Adoption
Non-biological parents who have officially adopted a child may face an easier path to obtaining custody of a child. The adoption paperwork confers legal paternity to the father, granting him the same rights as a biological parent when the court determines custody and visitation.
However, it is essential to provide all adoption paperwork. Additionally, compile all evidence demonstrating the de facto parent role as well; doing so will strengthen your case. Relying solely on adoption paperwork is not often sufficient to achieve the allocation of custody that most fathers desire.
For instance, if the adoption happened recently, this may affect the level of custody granted to the father unless he can demonstrate significant involvement in the child’s life prior to adoption.
Defend Your Fathers Rights with an Experienced Attorney at Milstein Siegel
Obtaining custody of a child as a non-biological father is a complex issue, but it does not have to automatically result in a custody arrangement that is not satisfactory for the father. Working with a legal team with extensive knowledge of a father’s rights is essential.
This will help you seek a determination of de facto parentage or pursue other options. The team at Milstein Siegel specializes in helping men obtain custody of their non-biological children and uphold their rights. Contact Milstein Siegel to schedule a consultation.
