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Father disappeared five years ago - can I get custody? North Carolina

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  • Father disappeared five years ago - can I get custody? North Carolina

    First off - I live in NC and need answers that pertain to this state.

    Now then...
    I am a young single mom with a seven-year-old son. His father and I were never married, although I did put his name on the birth certificate when my child was born (head slap - lesson: if you aren't married DON'T put him on the BC!!!!! You can always add it on later, but taking it off is impossible). We split up when my son was two years old, but we never established a custody order - I have since come to find out that this means we both have equal rights to the boy, and if his father took him from me I'd have no legal recourse. This scares me.

    His dad last saw him on his third birthday - it will be five years in a few months. Since then I haven't seen him or heard from him and neither has Aaron (my son). He no longer even remembers his father, which makes me sad, but I can't force his father to be in his life either. I have tried locating him but I have no idea where he is anymore. I also don't feel its up to me to pay a private detective to find him.

    Simply put, I want to get sole custody (legal and physical) of my child, so that I have the right to make all his legal decisions without his fathers consent. I also want to be protected from his father spontaneously appearing and potentially legally 'kidnapping' my son. His father has been gone for nearly five years, and yet I can't even take my son on vacation to the Caribbean because I need his dad's signature on the passport application. Also, he has not paid me a dime of child support since 2002 (not that there was ever an order though, so this probably has no legal bearing.) There have been no letters, gifts, calls... nothing.

    My questions are these:

    ~ How can I sue for custody if I can't find his father? What steps do I have to take to establish "due diligence" to prove I made a concerted effort?

    ~ What does "filing for abandonment" mean? Does this pertain to custody or only in issues concerning termination of parental rights? Right now, I just want sole custody, but if I eventually decide to marry I may decide to pursue TPR. Can I get sole custody on the basis of abandonment? How many years without contact constitutes abandonment?

    ~Also, can a judge issue an order for child support if the father does not appear in court? How could that even be enforced if he doesn't know the order existed?

    ~Similarly, if his father does not appear in court, will a visitation order need to be made? Does it even have to be addressed? Personally, I feel if his father does not want to be found, has not left me contact info, or does not bother to show up for court, then it's his responsibility to ask for visitation, and should be done on his dime, not mine.

    ~If he does not appear in court, and I suspect he won't, does that mean the judge will rule in my favor? Obviously, no one can totally predict what a random judge may or may not do, but is that the likely outcome or will I be forced to look for him some more?

    ~How can I find out who my local judges are and how can I find out if I have any say in who handles the case? In some NC counties, I have read, you can request a certain judge - but who would I call to find out if my county allows that? Also, how would I research my local judges and their tendencies on rulings?

    ~Last, who pays the court cost?

    Ha, I don't ask a lot, do I?

    I really appreciate any answers any of you may have. Thanks in advance!
    Last edited by Peach_Twilight; 09-23-2007, 02:19 AM. Reason: fixed typo

  • #2
    You will have to obtain the services of a lawyer.

    You will file for abandonment of the child and adjust the visitation order accordingly.

    A father cannot have his rights removed from a child unless there is someone else willing to pick those rights up. A child must always have two parents if at all possible (save for a death, for instance).

    However, it does not free the dad from his financial obligations to the child... and I would recommend highly that you pursue them.
    Not everything that makes you mad, sad or uncomfortable is legally actionable.

    I am not now nor ever was an attorney.

    Any statements I make are based purely upon my personal experiences and research which may or may not be accurate in a court of law.

    Comment


    • #3
      Wait, you said remarry.

      You said you weren't married to the father. Were you married at the time of birth?

      I am not asking to be nosey... this can impact the answer.
      Not everything that makes you mad, sad or uncomfortable is legally actionable.

      I am not now nor ever was an attorney.

      Any statements I make are based purely upon my personal experiences and research which may or may not be accurate in a court of law.

      Comment


      • #4
        I am a young single mom with a seven-year-old son. His father and I were never married, although I did put his name on the birth certificate when my child was born (head slap - lesson: if you aren't married DON'T put him on the BC!!!!! You can always add it on later, but taking it off is impossible). We split up when my son was two years old, but we never established a custody order - I have since come to find out that this means we both have equal rights to the boy, and if his father took him from me I'd have no legal recourse. This scares me.
        This is incorrect. If you were never married and there is no court order granting him custody, the only custodial parent is the mother.

        So, going by what you posted, you already have custody of the child.

        here is a link for NC child support.

        www.ncchildsupport.com

        Get an atty to file in court for sole custody order. Usually, you will have to make all reasonable attempts to locate him, including putting a notice in the newspaper. If he does not respond or show up in court, the judge will usually issue a deafault ruling. The ruling would be in your favor. Once you have the order, there are certain exceptions for parents attempting to get a passport without the other parent's signature/consent.
        http://travel.state.gov/passport/get...inors_834.html

        The custody issue really shouldn't be very difficult.
        HOOK 'EM HORNS!!!
        How do you catch a very rare rabbit?
        (unique up on him)
        How do catch an ordinary rabbit?
        (same way)

        Comment


        • #5
          Neither custody nor passport applications are issues.
          Please no private messages about your situation.

          Comment


          • #6
            Originally posted by cyjeff View Post
            Wait, you said remarry.

            You said you weren't married to the father. Were you married at the time of birth?

            I am not asking to be nosey... this can impact the answer.
            We were never legally married, although we did have a commitment ceremony - it wasn't legal because there was no marriage license. We exchanged rings on a beach - it was all very hippieish, but it wasn't legal. Still, I considered us married in our hearts and that's probably why I unconsciously typed "remarry" instead of "marry."

            Thanks though!

            Originally posted by moburkes View Post
            Neither custody nor passport applications are issues.
            Well, I don't know if you are correct or not, but when I tried to take him out of the country for vacation I was unable too, because I couldn't obtain a passport without his fathers signature.
            Last edited by Peach_Twilight; 09-23-2007, 02:24 AM.

            Comment


            • #7
              Originally posted by mommyof4 View Post
              This is incorrect. If you were never married and there is no court order granting him custody, the only custodial parent is the mother.
              Are you sure? I read elsewhere that if the father is named on the birth certificate he has just as much right as the mother regardless of marriage, unless a court order is in place.

              EDIT: Actually, it turns out that I was right to begin with according to Chapter 49:15 of the North Carolina statutes. It reads:
              "§ 49‑15. Custody and support of illegitimate children when paternity established.

              Upon and after the establishment of paternity of an illegitimate child pursuant to G.S. 49‑14, the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother. When paternity has been established, the father becomes responsible for medical expenses incident to the pregnancy and the birth of the child. (1967, c. 993, s. 1.)




              LINK:http://www.ncga.state.nc.us/enactedl...hapter_49.html
              Last edited by Peach_Twilight; 09-23-2007, 03:32 AM.

              Comment


              • #8
                the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother. When paternity has been established, the father becomes responsible for medical expenses incident to the pregnancy and the birth of the child. (1967, c. 993, s. 1.)
                Not without a court order. Child support is not legally owed until there is an order, even if paternity had been established 6 years before.

                Did your ex ever file a petition in court for LEGITIMATION of the child? Even if he is on the BC, in order for a man to be the LEGITIMATE father of any child he fathers out of wedlock, he must file for ligitimitation or subsequently marry the mother. Just being on the BC is NOT legitimitation.




                § 49‑10. Legitimation.
                The putative father of any child born out of wedlock, whether such father resides in North Carolina or not, may apply by a verified written petition, filed in a special proceeding in the superior court of the county in which the putative father resides or in the superior court of the county in which the child resides, praying that such child be declared legitimate. The mother, if living, and the child shall be necessary parties to the proceeding, and the full names of the father, mother and the child shall be set out in the petition. A certified copy of a certificate of birth of the child shall be attached to the petition. If it appears to the court that the petitioner is the father of the child, the court may thereupon declare and pronounce the child legitimated; and the full names of the father, mother and the child shall be set out in the court order decreeing legitimation of the child. The clerk of the court shall record the order in the record of orders and decrees and it shall be cross‑ indexed under the name of the father as plaintiff or petitioner on the plaintiff's side of the cross‑index, and under the name of the mother, and the child as defendants or respondents on the defendants' side of the cross‑index. (Code, s. 39; Rev., s. 263; C.S., s. 277; 1947, c. 663, s. 1; 1971, c. 154; 1977, c. 83, s. 1.)
                § 49‑11. Effects of legitimation.
                The effect of legitimation under G.S. 49‑10 shall be to impose upon the father and mother all of the lawful parental privileges and rights, as well as all of the obligations which parents owe to their lawful issue, and to the same extent as if said child had been born in wedlock, and to entitle such child by succession, inheritance or distribution, to take real and personal property by, through, and from his or her father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock. (Code, s. 40; Rev., s. 264; C.S., s. 278; 1955, c. 540, s. 2; 1959, c. 879, s. 10; 1963, c. 1131.)

                § 49‑12. Legitimation by subsequent marriage.
                When the mother of any child born out of wedlock and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall, in all respects after such intermarriage be deemed and held to be legitimate and the child shall be entitled, by succession, inheritance or distribution, to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall descend and be distributed according to the Intestate Succession Act as if he had been born in lawful wedlock. (1917, c. 219, s. 1; C.S., s. 279; 1947, c. 663, s. 2; 1955, c. 540, s. 3; 1959, c. 879, s. 11.)
                My custody proceeding was in NC.

                Now, you STILL need the custody order to get the passport. Luckily for you, if there has been no contact for as long as you state, you will have no problem being granted sole physical and legal custody. He has long passed the threshold for the purposes of legal abandonment.
                Last edited by mommyof4; 09-23-2007, 07:42 AM.
                HOOK 'EM HORNS!!!
                How do you catch a very rare rabbit?
                (unique up on him)
                How do catch an ordinary rabbit?
                (same way)

                Comment


                • #9
                  Absolutely Peach_Twilight get with an attorney and get the dad's abandonment entered into the record, ASAP. File for sole custody so there is NEVER any question as to him being able to swoop in and take off with your son. You should have no problems getting TPR ordered as he has not taken on the role of a parent in so many years. I suggest you pursue this NOW don't put it off. Otherwise he may be able to petition the court in the future for custody be shared or soul. Protect you son at all costs from a sorry deadbeat that doesn't even bother to make contact for the kids birthday. What a slime ball. The sooner you get these things attended to the sooner you can rest at ease that he won't be able to slip in the back door when you are least expecting him to and cause you much grief where your son is concerned.

                  Good Luck to you dear.

                  KM
                  Information posted by me is my "OPINION". I do NOT give legal advice to anyone as like most here I am NOT an attorney.

                  Comment


                  • #10
                    You should have no problems getting TPR ordered as he has not taken on the role of a parent in so many years.
                    TPR is completely different than going for sole custody.

                    TPR will NOT be ordered until she is married (for at least a year) and the new spouse is willing and able to adopt the child.

                    She will have no problem with sole custody, however. Even when she is awarded sole custody, if she chooses to persue child support, he will have to pay.

                    Your heart is in the right place, I just wanted to make that clarification.
                    HOOK 'EM HORNS!!!
                    How do you catch a very rare rabbit?
                    (unique up on him)
                    How do catch an ordinary rabbit?
                    (same way)

                    Comment


                    • #11
                      Tell me, how do you go about getting a TPR on a person that hasn't seen his child in 5 years, and hasn't tried to? What would be the basis of it?
                      Please no private messages about your situation.

                      Comment


                      • #12
                        Originally posted by moburkes View Post
                        Tell me, how do you go about getting a TPR on a person that hasn't seen his child in 5 years, and hasn't tried to? What would be the basis of it?
                        If the parent is the legal parent, abandonment or extreme disinterest in the child.

                        You can't get him on abuse, endangerment, etc. If he has never been ordered to pay child support, you can't get it on failure to support the child.

                        If he has never been found to be the legal father, then there are no grounds.
                        HOOK 'EM HORNS!!!
                        How do you catch a very rare rabbit?
                        (unique up on him)
                        How do catch an ordinary rabbit?
                        (same way)

                        Comment


                        • #13
                          Originally posted by mommyof4 View Post
                          If the parent is the legal parent, abandonment or extreme disinterest in the child.

                          You can't get him on abuse, endangerment, etc. If he has never been ordered to pay child support, you can't get it on failure to support the child.

                          If he has never been found to be the legal father, then there are no grounds.
                          You're right. I completely wrote my question wrong. I was talking about THIS case.
                          Please no private messages about your situation.

                          Comment


                          • #14
                            I think you have two general courses:

                            First course: File for sole custody and for child support, including both ongoing and past support. This will require you to find him. A good private detective can probably find him for $250 or so. All things considered, this may be better than getting a TPR, because this way you can make him pay some support.

                            Second course: Get the custody and support order for the short term, then file a TPR (termination of parental rights) petition to terminate him as the dad on the basis that he abandoned the child years ago. Abandonment in NC means he has not financially supported the child and has not been part of his life by visiting and remaining in contact. If you get the TPR, you will not ever get any child support from Dad. He will not owe it. I don't think you need a step dad waiting in the wings to get the TPR. However, the grounds for a TPR are a judgment call by the court, so they can deny it.

                            YOu can do course one and then course two if he does not pay up. The back due child support should still be collectible even after the TPR was finalized, assuming it was reduced to judgment first.
                            Bob Bollinger, Attorney
                            Board Certified Specialist in NC Workers' Compensation Law
                            Charlotte, NC

                            Comment

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