Can the Biological Father of a Child Keep Custody from the Mother?
In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child. Interference with custody is a crime governed primarily by state laws, which vary by state, and seeks to protect parental custody against unlawful interruption. It is intended to address long-term interference with child custody rights.
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When parents are unmarried, often the mother is presumed to have custody. However, the father, who still owes a duty of support, may at some point file a paternity or custody complaint if custody hasn't already been established. In most states, a paternity action takes the form of a civil lawsuit. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need. An action for paternity may be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity.
Statute 210.826 details when an action may be brought regarding the father - child relationship.
1. A child, his natural mother, a man presumed to be his father under subsection 1 of section 210.822, a man alleging himself to be a father, any person having physical or legal custody of a child for a period of more than sixty days or the family support division may bring an action at any time for the purpose of declaring the existence or nonexistence of the father and child relationship presumed under subsection 1 of section 210.822.
2. An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 210.822 may be brought by the child, the mother or the person who has legal custody of the child, any person having physical or legal custody of a child for a period of more than sixty days, the family support division, the personal representative or a parent of the mother if the mother has died, a man alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.
3. Regardless of its terms, an agreement, other than an agreement approved by the court in accordance with subsection 2 of section 210.838, between an alleged or presumed father and the mother or child, does not bar an action under this section.
4. If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except service of process and the taking of depositions to perpetuate testimony.
5. In an action to determine the existence of the father and child relationship under this section, a notification form, as specified in this subsection, shall be attached to the delivery of the petition through service of process. The notification form shall prominently state in boldface type as follows: "Important Notice. If you do not respond to this action, a judgment of paternity may be entered against you and you may be ordered to pay child support, medical support, or reimburse someone for support previously provided for the child. You have the right to contest that you are the father of the named child and you have the right to request genetic testing to prove whether or not you are the father.".
One local attorney has summarized the recent changes in the law in Missouri:
Until recently, paternity law in Missouri allowed a presumed father only one year to challenge the presumption. Moreover, a presumed father had to establish fraud to avoid a continued duty to make child support payments; that is, he had to prove that the woman lied to him about being the father. If he did not make a timely challenge, he was obligated to continue making payments until the child turned 18, even if DNA evidence proved he was not the father.
That was the past, though. A new law took effect in August 2009 that grants men broader access to petition courts for DNA testing and to vacate paternity judgments against them.
Doing so is not free, and that has likely been a contributing factor that has kept filings to a number beneath what the courts have exptected to see thus far. "We thought there would be a flood of them," says Jackson County Family Court Commissioner Patrick W. Campbell. "They just haven't come yet."
The up-front cost to get a case into court can be over $1,000, but whatever amount is laid out for DNA testing, case filing fees and, thereafter, attorney fees, pales when considering the potential savings involved in not paying child support for 18 years.
The new law provides that any man now paying support can challenge paternity until December 31, 2011. Following that date, a man will have two years to do so after a paternity judgment or support order has been entered.
Family law experts note that a man who is not the father of a child can still be ordered to pay support under the new law. Under the prior law, "the best interests of the child" was the overriding standard in paternity cases. The new law changes that to "in the best interests of the parties," which is a balancing test of competing interests. That standard has yet to be ruled upon in a contested case in Missouri, although an upcoming paternity hearing under the new law is scheduled for a Missouri man in October.
The paternity laws in Missouri are obviously in flux and somewhat complex, with new standards and important deadlines to note. Persons seeking to establish paternity or defend against it should contact an experienced family law attorney.
If paternity is sought, it should be remembered that the statute of limitations for establishing paternity in Missouri is the child's 18th birthday or 21st birthday if the child is bringing their own paternity action.