I was reading a novel by a prolific author who is supposed to be an honors graduate of an Ivy League law school. The premise is that a child who was adopted by the protagonist was actually kidnapped as an infant and the object of a search by the birth parents before being given up for adoption by the kidnapper’s girl friend. Ultimately the mother retains custody of the child because it was shown that the birth mother was killed and the presumptive father was not in fact the baby’s sire.
I have always believed that the father is presumed to be the biological father by all courts whether or not he is the actual provider of the sperm or not and retains all of the rights of the biological father by virtue of being married to the biological mother at the time of the birth. Would a court ever give custody to the adoptive mother in a case like this?
But really - the ultimate goal is the best interests of the child. Technically, yes, the father would be the husband of the birth mother. In an extended court case, however, where the lawyers can trot out all sorts of arguments, the question will be - the child has spent (I assume) a number of years being raised and bonding with her current “parents”. They did nothing wrong and have no culpability in the kidnapping. Then the question would be, what can the “real” father provide to compensate for the pain of such separation? At an age of 2 or 3, maybe this would not be relevant. By the age of 10 or 12, sending a child to live with a complete stranger makes no sense. If the father had remarried with a stable home life, and the child had siblings there too… maybe that helps the case. How much time he had with the child before the kidnapping might also be relevant. Not being the biological parent probably subtracts some of the credibility of his case.
“The best interest of the child” probably gives a judge a lot of latitude.
there was a really interesting British movie I saw several decades ago. the mother had non-identical twin boys about 10 years old, and seemed to treat one child better than the other. When she ended up in the 'wrong part of town" one day, she sees a woman with a child identical to one of hers. After investigation, it appears that the hospital sent one of her identical twins home with the wrong mother. She had instinctively known this and treated the wrong child with less love from the start.
At one point she is arguing with her husband that she wants to trade the “wrong” son for the right one. Her husband is getting annoyed with her erratic behaviour and points out “how likely is a judge to give you custody of another child, when you raised that one from birth and are eager to give him away?”
Of course, compounding all the other issues, the other woman is a single parent in a much lower income level.
While parental biological rights count for an awful lot, those rights are not automatic.
(I wish I could figure out the name of that movie).