Ask A Divorce Lawyer: Can a non-biological father adopt his daughter when the mother leaves her?

Question: 

When I met my now ex-wife nine years ago, she had a two-month-old daughter. I was obviously not the father but have taken care of her all those nine years. My ex married a man and moved to Vegas last year and said if I did not take our daughter back she would place her in a foster home so I took my daughter back.

Since I’m in no way legally attached to my daughter, what are my rights in terms of adopting her? She was born in Mexico and no father is listed on the birth certificate. The mother doesn’t want her and I’m the only father she knows so shouldn’t this be cut and dry? I don’t have the funds for a lawyer so is this something I can do on my own?

 

 

 
Answer:
The information you provided reminds me of a case I handled fresh out of law school for a man whose wife had three children with another man. She readily admitted that the children were not his, and even encouraged their visits with their real father during the marriage. In the divorce litigation, she claimed that my client was the “equitable parent” and, therefore, should be ordered to pay child support for children whom genetic testing and her own admissions proved were not his.  
It is unclear to me whether you were treated as your daughter’s father in your divorce decree. If so, the equitable doctrine may have (or now could, if you seek a modification) apply. The “equitable parent” doctrine arose out of a case in which a child was conceived and born during a marriage; the husband and the child acknowledged a relationship as father and child (although the husband was not the biological father); and when the parties divorced, the husband desired the rights of paternity and was willing to pay child support. In effect, this doctrine allows a third party to exercise parental rights, including custody rights and child support rights (or duties to pay support).  
Otherwise, you will need to proceed with an adoption.
 
All of this goes with two big caveats: first, equity may not apply in your case if other facts do not justify it (e.g., if you are only a recently involved father or if your son’s real father is named on the birth certificate) or if your state uses it sparingly or not at all; and, second, to formally adopt a child in lieu of obtaining a custody order, you will need to obtain a court order terminating the biological father’s parental rights – this is a complicated process that will take time, especially if the father is missing, and you should have an attorney to help you. You should call the California State Bar for information about low- or no-cost attorneys or legal aid clinics.  
I strongly encourage you to contact an attorney near you for a thorough case assessment. Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in California. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information and representation.

 

 

 

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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