Legal Question in Family Law in California
My husband and I have been legally married for almost 6 years, but have been together for 9. Unsuccessfully, we tried to have a baby. 3 years ago we met someone who became a good friend, and was our donor and we had a child. We accepted this person into our family and allowed him to be a part of our son's life. He also agreed for my husband to be on the birth certificate. He was accepted by both our families as our donor and friend up until he decided he didn't wish to live with us any longer this past July. The child turned 2 years old in August. There were no legal documents filed stating what we would do should we go our separate ways, everything we did was on a verbal agreement that my family, my husband's family and his family were aware he was our Donor and we were allowing him to stay with us and help us raise the child. Also, we claimed him on our joint tax return 2 years in a row because he didn't hold down a job in the 3 years living with us and we supplied the majority of his living expenses. In July, this man has moved out and left our family setting up a job and residence elsewhere in the same state of CA, and has become threatening, making threats to take our son from us because he is the biological father.He has two other children with an ex-spouse that are not in his custody.
Now he's threatening to start an ugly custody battle for this child. (Keeping in mind he didn't fight for his other two children) He currently lives with a couple whom my husband and I consider unsavory and dangerous as they have had violent domestic disputes in our presence and the presence of our child. My husband has assumed paternity for this child from the day I was pregnant and still does, while this man lived with us stating to all that knew us that he was our Donor. We also feel this man is a flight risk as we are in California but his family and other children are in Texas. He states that he now has a job and a house for himself in California that he can get custody of our child, even though my husband has assumed all financial responsibility for this child for the past 2 years. What can we expect to happen if he fights for paternity and custody?
1 Answer from Attorneys
This is an evolving area of law. I wish I could give you a clear answer, but the law is not settled on this type of issue yet. Most recent appellate law seems to indicate that the courts should take a totality of the circumstances approach. The fact he is the biological father does weigh in his favor, but this does not automatically mean he has the right to become a legal father of the child, and even if he does, it does not mean that he will be entitled to any custody. The good news is that your husband is conclusively presumed to be the legal father of this child. This does not mean, however, that the court will necessarily conclude that there cannot be 2 legal fathers of the same child. The bottom line is that you are going to have to fight this one very hard if you want this man out of your child's life.
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