Obtaining Custody of a Non-Biological Child 33

A party may still obtain custody of a child or visitation with a child that he/she is not biologically related to if that party qualifies as a “Presumed Parent ” under California Family Code section 7611. This code section requires that the party seeking presumed parent status (1) has taken the child into his/her home and (2) openly held the child out has his/her own.

To satisy the first requirement, the party seeking presumed parent status must have physically taken the child into his home. There is no hard and fast rule (known as a “bright line rule” in law) on how many times the child was in the party’s home or for what length of time. Each determination will be made by the court on a case by case basis.

However, the court will take into consideration whether the party’s efforts to take the child into his/her home were thwarted by the other parent. In one example, the court awarded a man presumed parent status where he attempted several times to bring the child into his home, but the mother always refused his requests.

To satisfy the second requirement, a party must openly hold the child out as his/her own. For example, sending out birth announcements, referring to the child as “son” or “daughter” to others, and including the child in a will or other estate planning documents.

The determination of presumed parent is very fact intensive so be prepared to provide detailed evidence to the court.

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Discussion

  • kathy bell

    my daughter had a child out of wedlock.,thought he was father.married him 9 months later.their in ugly divorce.he has temporary custody.dna proves he is not father.judge will not return child immediately.hes trying to adopt baby right out from under his blood family.what is wrong with this judge?she is allowing him to keep baby until court date july 9th.weve been trying to get baby back since early june.help…im afraid of this judge.

  • crystal

    my boyfriend is tring to see is little girl and he is not the biological dad . cause his ex-wife will not let him see her since he has been with me . now the biological father dose pay child-support but my boyfriend has supported he since day one . he was the first person to hold her when she was born . what can he do do see her ? please help he loves her so much and wants to see her so bad .

    • jtolison

      im in a similar situtation mother was refusing to allow me to see the child. did he sign the birth certificate and sign a affidative of paternity if so he still has rights until a court terminates his rights. words of advice dont let anyone tell u u dont thats not always the case but he has to act quickly before to much time has passed

  • Tanya

    Ok I have been raising my niece and nephew ,,,grl 13 boy 4 1/2……my brother has custody of the two,, but they have resided with me for the past 4 yrs… either parent has not given me any kind of child support what soever…….I have cared for them just as my own. the mother has not had hardly anything to do with them in the 4 yrs that I have had them.the father has been in and out..approx 8 mo ago the father was sent to prison once he was sent to prison this past christmas eve she came to my house demanding that i give her kids back she said that because the father was in prison that the custody reverted back to her.Leaving no choice but to hand over the kids with their bags packed I have no legal rights to these kids.After having the kids for about a month her boyfriend was very abusive to her and the kids.The cops and DHS was in and out every week.I knew this guy’s abusive ways prior to handing over the kids the system would not listen to me. They said, a child has to get hurt before anything is done.My nephew cried every day pleading to go home all he knew was me he wasn’t used to his mom…After a month she handed the kids back over to me..everytime my nephew went to her house for visitation he would cling to me and the car doors screaming with fear but i had no choice .That same weekend the BF threw him on the bed with his hands around his throat telling my nephew over and over that he was gonna kill him. The mother was hiding in the bathroom calling the cops..Nothing was ever done about it,,,I just don’t understand what is wrong with the system ,,I would love to get custody of these kids but I’m so scared that i will lose against her and I will never see the kids again but i feel that i have a good case it’s just that the system doesn’t really care.and they are crooked here..my nephew will only go for a visitation over night he will not stay any longer and as soon as he wakes up he is ready to come home…If anyone knows about rights or what i can do plz reply before it’s too late.

  • aaron

    I have been caring for a friend of my brothers for the past three years now. hes thirteen now and his mother died when he was younger and his dad was still married to her when she passed so he has custody, but he does nothing for him. just makes him cut the grass 5 times a day and repaint his bedroom twice a week. i bought him all his school suppliesz school clothes and shoes. i even put him on my cell phone plan and bought him a phone so i could make sure he is ok on a daily basis while his “father” sits at home and does crack. he comes over my house after school everyday and as gets ready to leave to go home every night at 10 he says “i really wish i didnt have to go home” and it breaks my heart. what do i do?????

  • Rebecca

    I have a very unique situation, and I can’t find anything like it to go off of. My brother (half) has lost both of his parents. His father died when he was 5 and our mother died last July. I was in the middle of a move with the Army and felt that it was wrong to uproute him at the time (4 days after my mother passed), so I left him with my step-father. He is now begging me to move with me to GA. He is currently living in OH, which thankfully because of the military we are still technical residents. My step-father is now stating that he will not let my 12 yo brother move. I have looked into guardianship, however, due to the fact that I did not fight and they gave him custody through the juvenile court I can’t get guardianship. I know he does not have a leg to stand on, especially seeing that 12 is the age of decision in OH and my brother wants to be with me. I don’t want to hire an attorney, as they have told me, “This is getting into the nitty gritty of the Juvenile System” and are talking about starting me out at about $3,000 for a retainer…Anyone ever hear of a situation like this? Any advise? HELP PLEASE!

  • Robert

    I am 33 years old and have a nine year old son. His mother and I are not married or together. We do keep in contact and live near each other. Now neither myself nor his mother has ever gone to court to get custody of our son in a legal manner since neither of us has ever tried for the sake of saving each other from “child support.” Now for the past four years my grandfather and his girlfriend are the ones that my son has been living with. I myself have been out of town and seeing my son every now and then. Every single weekend and the entire summer of my sons vacation periods he is with his mother. She has been struggling with her own personal issues and is now going to court for child support. My license is now suspended for child support and my father and his girlfriend are making arrangements to keep our son and no longer want him seeing his mother or myself. My sons mother wants the chance to raise her son and no longer have to pay child support. My worry is that my father and his girlfriend are going to go behind our backs and try to get custody of my son without telling me or even saying to the courts that we abandoned our son. Can they do that?

  • terry kennedy

    hello i have had my friends child since she was 7 yrs old she is now 12 she calls me and my husband mom and dad but the thing is

  • terry kennedy

    her dad has not seen her since april and it is now october and it is not like he has not had time to see her her mom has had her taken away by cps and i would like to get custudy of her but dont know how to go about it i just want conservatory but all grandparents have visitation. but i want to make it where her dad cant take her away from me now he is always getting mad a me and threating me with taking her way please help me if you can

  • L.A.

    I have had custody of my 4 year old nephew for almost 2 years. I’m in the process of adopting him and 3 days before the adoption hearing, his “father” wants to fight it!! He has never seen the child, he left before he was even born. My nephew is my entire world and I’m very scared. My lawyer says we have the upper hand but that he doesn’t know what will happen.
    Please if you have any impute or advise I would love to hear it.

  • L.A.

    I have had custody of my 4 year old nephew for almost 2 years. I’m in the process of adopting him and 3 days before the adoption hearing, his “father” wants to fight it!! He has never seen the child, he left before he was even born. My nephew is my entire world and I’m very scared. My lawyer says we have the upper hand but that he doesn’t know what will happen.
    Please if you have any impute or advise I would love to hear it.

  • Stephen K

    I’m 22 and have a 1 year and 11 month old daughter who is biologically not mine (to my knowledge). I have a full-time job and also am apart of the management. Her mother has decided to take her from me, due to personal disagreements. I have raised her for almost 2 years. I do have witnesses to neglect. She know my mother as grandma, my brothers as uncles, my sister as auntie, my sister in-law as auntie. She has been apart of my family since before she was born. I wanted to know if there is any legal way to get custody, full or partial.

    Feedback and advice would be much appreciated.

  • Benjamin Dunlap

    I went through a seperation with my ex-girlfriend/son’s mother. I now have full custody of my 5 year old son and I have since he was three. He has two sisters and a brother. His oldest sister and his brother are out-of-hand. But his youngest sister is quite the young lady. I keep the three of them on most weekends. But when it comes time to take them back to there mother. The youngest daughter who is 10 years old cries because she does not want to go home. she wants to live with me but she is not my biological daughter. but she is my son’s biological 1/2 sister. does anyone if I have a chance to get custody of her? my Ex is living with her acoholic mother whom she is court ordered not to leave the children with. I am afraid that if turn her in that they all will be taken in to the system and both my son and myself will never get to see any of them again.

  • ……

    I’m the father instead of 100 percent custody I gave my girls mom 100 percent nd let my daughter stay there now she has been makin all the choices telln me to abide by her schedule..is there a big problem if I wanted 100 percnt custody nd change of address?

  • Peggy Huffman

    FOR OVER 7 YEARS MY HUSBAND AND I ALONG WITH MY OLDEST SON HAVE RAISED EDUCATED SENT HIM TO PRESCHOOL ALSO SENT HIM TO ELEM. SCHOOL WITH MOTHERS CONSENT AT THE TIME. THE MOTHER WAS ONLY 15 WHEN SHE GOT PREGNANT WITH HER FIRST SON. SHE DATED MY SON AFTER AND BEFORE THE BIRTH OF THE CHILD. HER SON AND HER WERE KICKED OUT OF HER MOTHERS HOME AND CAME TO LIVE WITH MY HUSBAND AND I MOTHER AND SON..SOON AFTER MY SON AND HER BROKE OFF THE RELATIONSHIP BUT MY SON CONTINUE TO VISIT WITH THE CHILD BECAUSE HIS BIOLOGICAL FATHER WANTED NOTHING TO DO WITH HIM. MY FAMILY AS A WHOLE FELL DEEPLY IN LOVE FOR THE CHILD AND RAISED HIM FOR OVER 7YEARS. IN THE MEANTIME SHE HAS HAD 3 OTHER CHILDREN. ONLY ONE OF THE CHILDREN A GIRL THE FATHER DID THE RIGHT THING AND TOOK GREAT CARE OF HER. THEN SHE HAD ANOTHER SON WITHIN 2 MONTHS THIS CHILD WAS ALSO TAKEN IN AND CARED FOR THE MOTHER HAS ADMITTED IN COURT EVEN WHEN SHE WAS PREGNANT AND DOING DRUGS WITH THE 4TH CHILD ON COURT RECORDS COCAIN AND ANY OTHER DRUG YOU COULD IMAGINE. SINCE MARCH OF 2010. THEY WERE TAKEN IN TO FOSTER CARE BECAUSE WHEN IT CAME TIME FOR THE WELFARE SYSTEM TO COME OVER TO SEE IF THE CHILDREN WERE LIVING WITH HER ONLY THE GIRL SPENT VERY LITTLE TIME WITH THE MOM. THE ONLY GOOD THING IS THAT THE 3 CHILDREN ARE LIVING WITH FOSTER CARE PARENTS. OVER 10 THOUSAND IN LEGAL FEES AND WE STILL HAVE NOT BEEN ABLE TO VISIT WITH THE KIDS WE RAISED. I ALWAYS TOLLED THE KIDS I WOULD ALWAYS BE THERE FOR THEM AND I HOPE THAT THEY HAVE NOT BEEN BRAIN WASHED WHICH I CAN TELL IS GOING ON. AT 8 YRS OLD KNOW I FEEL HE THINKS WE LEFT HIM AND THAT WAS NOT THE CASE AS LONG AS THE MOTHER COULD LIVE OF THE GOVERMENT WITH OVER 740 MONTH IN FOOD STAMPS AND I DONT KNOW HOW MUCH SHE RECIVED. SHE ACTUALLY SOLD THE FOOD STAMPS AND WAS ABLE TO KEEP HER DRUG PROBLEM WITH THE MONEY SHE GOT FROM THE SYSTEM. I HAVE 100S MAYBE THOUSAND PICTURES AND VIDEOS OF THE BOYS MY FAMILY RAISED. SHE HAS ONLY SHOWED ME PICTURES SHE HAS AND THEY ARE ONES SHE TOOK WITH HER PHONE WHILE SHE GOT HER WEEKLY VISITS. AND MISSED MANY OF THOSE. I KNOW THIS IS HARD TO FOLLOW BUT WE LOVE THE KIDS SO MUCH MY HUSBAND COACHED HIM IN BASEBALL AND FOOTBALL TILL HE WAS REMOVED. I JUST WANT TO SEE HIM AND LET HIM KNOW I LOVE BOTH OF THEM WITH ALL MY HEART. WE ARE NOT FINACIALLY WITH THE ECONOMY TO PAY FOR ATTORNEY THAT I THOUGHT WAS A GOOD ATTORNEY AND STILL DO BUT KNOT ONE VISIT. COULD SOMEONE PLEASE TELL ME HOW THESE CHILDREN ARE BETTER OFF IN THE 3RD FOSTER HOME THAN WITH PEOPLE WHO LOVE HIM. CAN ANYONE LET ME KNOW WHAT I CAN DO WE HAVE DOCUMENT AFTER DOCUMENT OF TAKING THEM TO DOCTORS VISIT EVERYTHING A MOTHER SHOULD DO BUT DIDNT. I AM HEARTBROKEN CAN ANYONE PLEASE HELP MY FAMILY HAS GRIEVED THIS FOR OVER A YEAR EVERYTHING IS STILL IN OUR HOMES THAT WE GAVE THEM CLOTHES TOYS ETC. A LARGE TREE HOUSE THAT MY HUSBAND AND THE BOY BUILT HE CALLS IT HIS CASTLE AND IT LOOKS LIKE ONE. BUT I CANT EVEN GO OUTBACK YARD BECAUSE I KNOW THE BOYS THOUGHT OUR FAMILY WAS THERE HOME PLEASE SOMEONE LET ME KNOW IF WE HAVE A CHANCE I FEEL LIKE I AM GRIEVING MYSELF TO DEATH ALONG WITH MY FAMILY LITTLE DID I KNOW THAT DAY WHEN I TOOK HIM AND HIS MOTHER IN THAT WE WOULD RAISE THE KIDS WHILE SHE WENT FROM MEN TO MEN AND DRUG ABUSE SO BADLY THAT EVEN WHEN SHE WANTED A VISIT WITHIN 2 HOURS SHE WAS CALLING FOR US TO COME BACK. AND WE DID WE FEARED FOR THIER SAFTEY. SO MUCH MORE TO SAY I STILL CARE FOR THE MOTHER BUT SHE HAS SERIOUS PROBLEMS I WANT THE BEST FOR ALL. MAIN CONCERN IS LETTING THE CHILDREN KNOW IT WAS NOT OUR CALL AND WE STILL LOVE AND MISS THEM I CAN SEE HIM IN MY MIND UPSET BECAUSE HE TRUSTED US TO HELP AND I AM HELPLESS..NO CHILD SHOULD BE TREATED THIS WAY PLEASE HELP ME

  • Sarah Lambert

    My boyfriend has been the father to his nonbiological daughter since she was born she is 4 years old now and her mother decided to take his time with her away. He was paying child support that was not through the state just a mutual agreement. His daughter refers to him as dad and his parents as grandma and papa. a few months ago we got a lawyer and filed a paternity action to get some kind of rights back. I know her mother does not neglect her or mistreat her but she has been unemployed for over a year and we know she uses drugs they have moved 3 times in the past year and now reside in low income housing I have nothing against low income housing but I feel my boyfriend would be able to provide for his daughter better than she will.

  • Aleah

    My older sister just found out that my dad isn’t biologicaly her dad. We both want to live with my dad. Will a judge let her to move in with him even though our mother dosen’t want either of us to live with him or even see him?

  • Amber

    I and my family live n west Virginia my ex husband and I separated only a couple months after our wedding because of adultry n a few ther things that are too hard to talk about but anyway I became pregnant with my a the time husband n we separated n awaited our divorce hearing n the mean time I meet my now boyfriend n I was a couple months pregnant n we have been together since then nhas been my sons father since his sperm doner wanted nothing to do with him! My x did c my son a few times n a friend of his came to me n said he had been hurting hi
    Everytime he had him not feeding him or changing him left him n a hot car n middle of summer with windows up for 1/2 hour or more! My boyfriend (bn only dad he really knows) wants to adopt him n my x wants to relinquish his rights how do I go about doing it n what steps do I take I need help on this please feedback is great! Thank u and have a great day!

  • Denise

    i have rasied my neice for 7 years. Yesterday all of a sudden her mom decided she wanted to rasie her the cops said i had no choise but to give her back because she had her birth certificate. Is there anything i can do please help.

  • Mr. Guerrero

    Me and my wife have a four year old little little girl who is not biologically mine. I was with the her during her nine month pregnancy and at the birth where I signed the birth certificate. we were going through a trial separation a couple years back and I took a DNA test to find out that she was not mine.. my wife led me to believe she was my from inception to birth.We got back together to give another shot but not succeeding. I live in Omaha, Nebraska now where we got married.. She is saying I have no rights to custody over a beautiful little girl i help raise for four years and love her like my own..

    Tony Guerrero

  • HURTING

    I HAVE A 6 YEAR OLD DAUGHT WHOM IS NOT BIOLOGICALLY MINE BUT HAVE RAISED HER SINCE SHE WAS 1 I HAVE PUT A ROOF OVER HER HEAD , SUPPORTED HER AND DONE EVERYTHING FOR HER AS IF SHE WAS MY OWN ME ND HER FATHER SPLIT IN APRIL AND I HAVE HAD HER MOST OF THE TIME UP UNTIL I TURNED HIM INTO CPS FOR HITTING HER NOW HE AND HIS FAMILY WONT ALLOW ME ANY CONTACT. I AM TRYING EVERYTHING I CAN TO GET SOME KIND OF RIGHTS JUST WANT TO KNOW IF ANY ONE HAS ANY SUGGESTIONS

  • Jessica

    I am 17yrs old my “mother” has had custody of me since i was a year oldand are not related in any way. Ever since i turned 17 we fight everyday and not just arguing we hit each other and i cant stand it anymore. My natural father lives in the same town as me and I want to live with him. But my “mother” said she will call the cops and have me arrested for a run away. But since she is not my real parent would it be legal for me to live with my father without any legal actions being involved??? Please help im going insane.. :/

  • Benjamin

    I have raised two children as my own since they were very young. Their mother has recently passed away and the boy, age 14, wants to come live with me instead of living with his maternal grandmother. I have been told I could sign his birth certificate and claim his as my own. However, there is a social security case involving the two children due to their mother’s passing. I need help to know how to start the process and if this is even feasible for me to do.

  • Joy

    I am seriously thinking about divorce, but my situation is difficult. I have 3 kids,7yrs old, 6years old and 2 years old but only the two youngest are biologically mine. The oldest is my husbands biological child but i’ve had here since she was 4months old. and she’s now 7 and will me 8 this year. I love her with all my heart as if she’s my own. and don’t want to loose her to him or her biological mother. If need be I will stay married to him and get cheated and lied to, just so i can keep her. Is there anyway that i can get a divorce from my husband and still have full custody over her even though her biological mother is still around?

  • Melissa

    I am in a custody battle with me ex that had legal custody of his nephew, however I have raised this child since he was 3 months old and he is now 4. I won the temporary emergency custody of this child in our first court battle. It was ok for me to be “mommy” as long as I was with him in a verbally abuse relationship but since we have separated he and his family want to take him away from me. His mother passed away and we have no idea who his father is. My ex’s attorney is trying to omit me from my sons life, saying I am a “non-relative”! I am the only mother this child has ever known, please tell me that there is no way any judge or court system will agree with these people and take this child from his mother!

  • fill

    I am with my girlfriend we have a daughter who is not biologically mine her bio father has never been in the picture wht do i have to do to gain custody of her in illinois

    • Guest

      did you get an answer to this? im in teh same situation right now!!

  • Jd91

    I met my ex girlfriend when she was 3 months preg. Iv raised the little girl as my own for 3 yrs . Iv paid for everything for them both . We just split up , is there anyway I have any sort of rights ? The biological father has never been there and iv loved my little like she was my own.

  • shantel t billings

    I had raised my husband cousin son since birth and I have full legal custody because she didnt want him now nine years goes by she wants him back. She never had no interested in him all these years.can she really get him back even if the child doesn’t no her or her family.

  • I need an option

    I have four children. However, my oldest daughter is not mine biologically. Her father and I were married, but divorced. We reconciled, got back together, but never got remarried. I have raised my step daughter since she was two. She has never known her “Real” mom. Her father travels and works out of state. Recently he cheated and we split up, but he left her with me. It has been a month now and he has not seen her at all. She is begging to live with me, but he is now mad at me and threatening to come and get her and she will “travel” with him while he works on roofs and he will home school her. I just got her up to honor roll last year. She needs school because she has a difficult time reading, but I have no legal custody or rights. We live in Ohio. Can I obtain temporary custody because of abandonment or neglect? There has to be something that I can do. She has been my daughter her entire life and he is using her as a pawn to get back at me. Please tell me I have an option.

  • Lillie

    my boyfriend and I have been together for 5 years now. When we first got together he just received full custody of his daughter at the time she was 11/2 years old. He also has another daughter with the same mother but didn’t pursue custody of her. We have had an additional 3 kids. So a total of 5 kids which of 4 I take care of all the time! Over a year now he has had a gambling addiction and refuses to get help. He’s attitude about our financial situation is careless. I have decided to part ways once our lease is up in Feb, however I am concerned about my oldest daughter that isn’t biologically mine. What can I do to get temporary custody until their father sees straight. I am filled with guilt of wanting to part because of her. She has already been through so much in her life. Her biological mother shook her when she was six months and she was put into a comma. Her biological grandmother is always sick and her biological mother gets visitations 2 a week which are supposed to be supervised but her father allows her biological mother to take her with out supervision. What do I do to get custody of her? I think its in the best interest for my oldest daughter to be with me and her siblings.

  • BecKam03

    I have raise my ex’s child since she was 3yrs old she was my world an I lived her as my own still do her Mommy and I broke up in Oct. she kept her from me then about a month later she had a change of heart till recently she got with this new person and moved on and completely cut me out of my daughters life I am so torn and heart broken feeling like a mother who got her child stripped out of her life it’s been about a month and a half since I have seen this child spoken to her and even know how she is doing I gave up my life and future to raise this child and in return her biological mother leaves me with nothing for 6 1/2 yrs I was a stay home mom taught this chip everything she knows always kept her on top of her class she Loves me and Calls me Mom and her biological mother Mommy I have never spoken down or bad of her mommy to her or I front of her child and all this time I gave this child with her mommy always saying I am her other parent then she shuts me out changes her number and moves in with her new girlfriend the last I was told was that my daughter was doing bad in school and with her mommy talking back and maybe possibly failing 5th grade It breaks my heart to know such a great kid is going bad she was doing so much good with me still in her life even if it was for the weekends and holidays she was doing great but now I am forced out and she is doing way worse I wish there was something I could do legally to have visitations rights with this child I call my Daughter instead of having to wait till she is 18yrs old I know tho child wants nothing more than to be in my life and she is becoming a very angry child because I am no longer in her life her father lives in another state and was always in and out of her life and the mother I trying to cut him out as well he won’t talk to me anymore because his ex wife which is my ex told him lies about me and that I was crazy or something I don’t know all I know is if there is anything I can do in the state California to allow visitation rights to a child I raised and she loves me as a Mom then please help me because my life is so empty without this child I call my daughter can anyone out there please help me because 7yrs is just way to long without her

  • Bailey

    I met my husband in 2011 when his daughter was two, almost immediately I took on the mother roll. Her mother walked out of her life when she was 5 months old she moved in with another man and got pregnant by him. She has had very little to do with my daughter in her entire life. My husband went to court and got full physical custody and they share legal custody, the mother was awarded mid week visitation but fails to make them or even bother to call/text to see if her daughter is even alive. We have not seen nor heard from her in almost a year. Recently my husband decided he was no longer happy ( not sure what he was so unhappy about I did everything for him but that is another point) Anyways he has been gone for almost a month living with his brother, as of now we have been sharing custody of my daughter Hayley who is four now and I am the only mother she knows. But I plan to have a talk with my husband about filing for divorce I need to know is there anything I can do??? I love this little girl with every bit of my heart and soul. I would do anything in this world to protect her. I don’t want to loose her but is there anything I can do???