A buddy of mine has a four year old child from a previous relationship (not marriage) and is now married to another woman. He and the mother of the child have worked out an informal agreement between the two of them as to custody of the child. My friend has custody five days per week, while the mother has the child on weekends. This has never come before a judge or been formalized in writing (that I know of). His marriage is now looking pretty shaky, and if they are still married this time next year, I’ll be very surprised.
My question is this - if/when he gets divorced, will this informal agreement with the mother continue to hold, or would custody of the child become an issue for a divorce court to decide? I’m almost positive that the wife will not ask for custody of the child (not her child, been married for less than a year). The mother might.
BTW, North Carolina law applies, but any general legal-type opinions from other jurisdictions are welcome.
Do not meddle in the affairs of Dragons, for you are crunchy and taste good with ketchup.
Hopefully one of the real lawyers will step up to answer this one. Until they do, having spent some time in Family Court myself, I will do my best.
The father’s second wife almost certainly does not have standing to ask for custody, since there was no formal agreement granting her guardianship. Even if there were, the biological parents usually have much more weight in an argment vs. a non-biologically-related person.
Assuming the mother has full custody, the presences of an informal agreement does not really affect her decision making powers. However, were the situation to go to court, the judge would consider a lot of factors in issuing a ruling of custody.
Family Court can get really ugly. My advice to your friend is to be nice to his ex-wife, and negotiate a new agreement based on changing circumstances. Better to deal with it yourself than drag lawyers into the situation.
Time flies like an arrow. Fruit flies like a banana.
I do not really know anything about NC law, but I will look into it at work tomorrow.
First, did the father ever acknowledge that is his child? Is his name on the birth certificate? If paternity has not been established, then the mother has all the rights until it is. (This is MS law.)
Second, if there has been no formal documentation of the visitation agreement or custody matter, there should be as soon as possible. I do not believe the wife has any legal claim to the child, but this varies from state to state. I do not have LEXIS at my house, so I will have to check that at work.
The best thing to do would be to get court documentation of the custody and visitation agreement as soon as possible. I am not sure if the informal agreement would hold in court, it is probably at the judge’s descetion. Your friend could try to prove the amount of time he has spent with the child. All those factors would be taken into consideration.
I hope this helps some. I do not have the resources for specific answers now so it is a bit sketchy.
Singledad- Dad and Mom were never married to each other, and Mom only has custody two days a week, not full custody. I don’t think Wife has any standing either, but good to have another backer on this one.
Just_A_Girl_26- Dad is on the birth certificate as the father, and acknowledges the child as his own. I forgot to add this before, but the child has Dad’s last name, not Mom’s. This was changed about a year after the child was born. Dad provides the primary care for (of?) the child, which I don’t think would be hard to prove.
I hope this divorce and custody question remains purely hypothetical, but like I said - the union of Dad and Wife looks none too stable.
I am a lawyer, but I know next to nothing about family law, so I’m sorta talking out of my butt here, but that’s never stopped me before.
I really can’t speak to the legal status, but it seems that the biological parents have been having an effective joint custody arrangement. If it is working for them, there is no reason for them to change it or formalize it. My understanding is that formal agreements and visitation schedules are really only necessary where the parties cannot agree. In a divorce, there will usually be a custody and visitation order, but this is because the marriage relationsip is changing and some sort of structure is needed for the new relationship. After a divorce, if the parties mutally agree on a different visitation pattern from that in the order and just do that, no one will object.
I would expect that the Dad’s wife has no rights, and unless there is some real conflict,I don’t think there is any reason to formalize the arrangement between the parents.
From the description, Mom definitely has legal custody and her physical custody would under the informal agreement be looked upon as “visitation.”
Dad has physical custody. If he is legally acknowledged as the child’s father, he also has legal custody.
Wife is a step-parent. She does not have legal custody but shares physical custody. In the event of a divorce, wife would probably have standing to sue for custody if Dad is a legal parent. She would probably be unsuccessful in her petition. She also has standing to sue for visitation. I don’t know how this state’s visitation statute reads, but every state currently allows non-parents to seek visitation under some circumstances.
The USSC is currently reviewing a case from Washington state in which that state’s very broad visitation statute has been challenged as interfering with a parent’s constitutional right to raise her child as she sees fit. From what I have heard of the case, the USSC seems to be leaning toward either invalidating the statute as being overbroad (it allows for “any adult” to seek visitation) or adopting a test which originated in Wisconsin which evaluates the petitioner’s relationship with the child on the basis of how “parent-like” it is and the best interest of the child.
IANAL, but were I Dad in this situation I would make sure that I was legally the parent to this child to protect my parental rights. I would also sit down with Mom an attorneys for an hour or two and draw up a custody agreement.
Well, call me a pessimist, but I look to the worst possible scenario and try to take steps to minimize the consequences. My friend is an idiot.
OK, that’s a little too general - he’s an idiot in terms of his relationships with women. He operates in full-speed-ahead dickthink, with no discernible cranial involvement. I’m worried about the WCS in which he ends up without a house, without a wife, and without the custody of his child.
Thanks for weighing in, 'dopers. We (Dad’s friends) have been particularly unsuccessful in the past at offering advice…actually, we have OFFERED a lot of advice, he hasn’t TAKEN any of it…but maybe this time he’ll listen, and get the custody arrangement formalized before his situation with Wife deteriorates any further.
Do not meddle in the affairs of Dragons, for you are crunchy and taste good with ketchup.
Please advise your friend to work very hard to keep Child Support Enforcement Division (or whatever it’s called in your state) out of the picture, if at all possible. That group is like a tar baby and he’ll have a ton of grief if they get involved. A lot of times it’s not even the fault of CSED, it’s just the tangle of red tape created by bureaucracy.
May I make the simple suggestion that only an attorney (or other trained legal professional) who understands North Carolina family law is qualified to answer this question? It is for this reason I won’t offer an offhand, and uneducated, opinion.
The idea of not having a formal agreement before a judge is just dumb. Getting a formal agreement is a must. As a matter of fact, you can get a book, I just read it, CHILD CUSTODY SIMPLIFIED. Pretty much says it all very uncomplicated too.
If you limited responses to questions to those people who were actually qualified to answer them, this board would die a quick death. While it’s true there is a certain lack of overarching legal theory for family law, some things are pretty constant. The OP asks for a general sense of the law outside NC as well as for NC-specific information. Telling someone to formalize a custody arrangement strikes me as a pretty common-sense thing to say regardless of one’s legal training or expertise.
I suppose for the sake of clarity I should indicate that my answer was based on my knowledge of Wisconsin law and the discussions on the the similarities of Wisconsin family law to that of other states.
On here, I wouldn’t put much more value on the opinion of someone who claimed they had specific SC legal credentials. If I want a real legal opinion, I will go to a lawyer in person, eyeball his degree and certifications, and pay him. Free legal or medical advice of almost any sort is worth what you pay for it.
No offense to the lawyers here. Discussing the law and getting the opinions of both the professionals and the amateurs is very interesting. I always learn a lot. And you guys really shatter the public perception: you’re nice, fun to talk to, intelligent, well meaning and comprehensible.
Time flies like an arrow. Fruit flies like a banana.
Read carefully, Asmodeus, I didn’t say that I was talking out of my ass, but rather I was “sorta talking out of my butt.”
There is a subtle difference. The former is prohibited by the lawyer’s code of ethics, while the latter is acceptable under certain circumstances present here. The reason we go to law school for three years is to be able to make these distinctions.
– Bill
By the way, here I’m totally talking out of my ass
You don’t have a thing to worry about. I’ll have the jury eating out of my hand. Meanwhile, try to escape.
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