Taking Away Parental Rights

[amandajd1981]

My question involves paternity law for the State of: Alabama
I was already pregnant when my husband and I met, when the baby was born he signed the affidavit of paternityand the birth certificate. He knows that he is not the child's biological father. He is an illegal immigrant and was deported when the baby was just over a year old. He is back now and sees the baby every now and then (we have sperated, planning on divorce) I am wanting to take his parental rights, I am scared that if something happenes to me (death) He will be able to take the baby to Mexico and raise her. I do not want that! He is an alright father, not the best, how can I insure that he will not be able to take my child to mexico if I were to die?

[525601minutes]

How old is the child now?
Is the child listed as his in your separation papers?
Is there a temp order of support that will be finalized when the divorce is final?

[aardvarc]

If he is established as the father, then should something happen to you, HE will be the one legally responsible for the child. Courts like children to have TWO parents for just this reason. You'll typically need one of three things to happen to circumvent this process:

1) You get remarried and the new spouse is willing to adopt AND the father is willing to allow the adoption; or

2) you show by some very clear and convincing evidence that the father is either SO bad, or SO unavailable that he couldn't father the child (convictions for crimes against children, severe and incapacitating mental illness, starting a long prison term, etc.); or

3) If you can figure out who the actual father is, he may be able to step back into the picture if he can establish paternity, but a consultation with an attorney needs to take place first - depending on the age of the child even that action may be moot by now (not fair to the child to play musical daddies).

If you didn't want him to be the father, why list him on the birth certificate? (Inquiring courts will want to know why the fraud was set afoot in the first place.)

[amandajd1981]

The child is four now, we are not legaly seperated, just not living in same house, we have not lived together since the beginning of 2007

He was a great father to begin with. When we married we were going to apply for citizenship here in America. He was deported before we could start the process. While he was in Mexico, of course, he meets someone else and has a child with her. He has told me that his plans are to go back to Mexico within the next few years. So now that he has totally changed plans on me, I don't want to run the risk that my child will grow up in Mexico.

[525601minutes]

If he is established as the father

Four years is pretty darn established. If he wanted to leave the country right now and take the child to Mexico you would be pretty much out of luck. Does your soon-to-be-ex know that you do not want him to have parental rights after the divorce? If he wants to contest the paternity of the child, then the time to do it would be when legally separating and filing for divorce. You and he need to work together with the lawyer on this one - but as Aardvarc stated - you committed fraud and will have to deal with the consequences.

[aardvarc]

Hmmm...I didn't mean "if"...more of "since"...since he's not only on the birth certificate, but also since the child was born during the marriage, even if conceived prior, making the husband the legally recognized father by default anyway.

And I'm in agreement - right now he's the legal father, even if by fraud, so he doesn't even need to wait until something happens to you - he could put HIS legally recognized child in the car TOMORROW and disappear - and unless you've got some MAJOR documentation that he poses an immediate threat to the child, you won't get any help from law enforcement either; they will tell you to go to court and get a court order as part of a divorce that lays out some OTHER arrangement regarding who has the child and when. You need to be working with an attorney, filing for divorce, establishing custody (if not re-establishing paternity) and cleaning up the fraud mess. Otherwise, this man has and will CONTINUE to have exactly as much legal right to the child as you do; and with no court order in place to the contrary, there won't be anyone to assist you in getting the child BACK if he takes HIS child somewhere (as the legal father, he doesn't need your permission). The worry isn't so much what'll happen to the child if you're dead - be JUST as worried, if not MORE, about what could happen with the child while you're ALIVE.

[nololaw]

i disagree. If he isnt a legal citizen, he cannot take a legal U.S. citizen across the border without International law intervening. this isnt as cut and dry as it seems. However, if he were to remove the child from the U.S. and into Mexico, good luck with finding them and getting her back in a timely manner. You really need to get an attorney and do not delay any further. While i may not agree with the others about the father just taking the child from her/your residence, you really need to make sure you handle this fast before it happens.

[Mr. Knowitall]

What are you talking about? When you cross the border into Mexico you will find yourself talking to a Mexican immigration officer, not some magical officer of some international legal organization. If you mean that there are treaties that may be of help bringing back a child who has been taken across an international border in violation of a custody order, well, sure - but that's not what you said. There is no law that prevents a parent who happens to be a foreign national from taking his child home for a visit - for that matter, some U.S. citizen children live abroad with a non-citizen parent or parents.

Amanda, your husband was deported after the child was born and 'is back now' - are you stating that he reentered illegally? If not, fill us in on the details.

You should seek a temporary custody order through the divorce, and follow the instructions on the state department website to minimize the chance that he could successfully cross the border with the child.

[aardvarc]

Note that my reply didn't say ANYTHING about taking the child to Mexico or anywhere OUT of the country. The simple fact is that so long as the current state of affairs is what it is, he can take his child and disappear; to Portland, Maine; Portland, Oregon; or anywhere in between. Certainly, he would encounter border issues trying to take the child out of the country through normal channels - but as it appears he is already adept at coming and going illegally, the presumption would be that his plan wouldn't be to sit at a border crossing with the child in tow for easy discovery.

[amandajd1981]

Yes he entered illegally.