Don’t wait. Chase your rights as a parent as soon as you can. Otherwise, you might lose them forever.
Coleman & Horowitt does Family Law. In this article, I consider a situation where a father will likely loose all rights to his child, and then I consider what he could have done to avoid his inevitable fate.
The Hypothetical Situation
Here is our hypothetical situation:
The Setup
A man and a woman meet in college. They engage in casual relations which results in pregnancy. After a rough couple of months weighing all options, the woman perceives that the man will not be there to support her when the baby arrives. So, she leaves with the baby still in her belly; crosses state lines; and seeks refuge among family and friends who will provide the support that she believes the father never would have provided. During their last fight, Mom tells Dad that she doesn’t need him and that she doesn’t want him to contact her anymore. She doesn’t want his money, and she wants to be left alone.
Dad says she never really gave him a chance. She left without telling him. She blocked him on all social media. She canceled her phone number, and although she never attempted to conceal her location, she did not respond when he tried to contact her through friends or family.
The baby is born. Mom never informs dad. Dad never really investigates either. He waits passively asking about her from time to time but never reaches out. When the child is nineteen months old, Dad decides to search for Mom on google and social media. He finds her, and he uses a friend’s account to reach out and signs the message so Mom knows that it is him. Mom never responds.
Dad’s Attempts to Communicate
Dad sends the first message to Mom when the baby is nineteen months old. A year later, he does this again. This time, he uses a different social media platform, but he makes contact under his own identity.
When the child is almost three years old, Dad becomes a super sleuth and uses geotagging on Mom’s Instagram posts to locate her city and state. He follows people linked in the photos to confirm the location. He uses Google Maps to locate a residential address, and he files a lawsuit to establish paternity and enforce his rights.
Under the facts above, Dad should lose his rights as a father. He waited to long.
California Law
Under California Law, a parent loses the right to be a parent if they leave the child with the other parent for one year without communicating with the child or if they go for one year without providing support for the child. (Fam. Code, § 7822, subd. (a)(3).) Either act alone is sufficient to take away a parent’s rights. (Fam. Code, § 7822, subd. (a)(3).) Although the law states that these acts must be performed “with intent to abandon,” the intent to abandon is presumed. (Fam. Code, § 7822, subd. (b).) Only clear and convincing evidence will overcome the presumption.
How could Dad have avoided losing his rights?
What this means for Dad, in our hypothetical above, is the following. He should have tried harder and sooner to establish his rights.
Step 1. Search early and diligently.
In our hypothetical above, Dad didn’t really put in diligent effort to search for mom until three years later. As soon as he discovered that mom left, he should have hired a private investigator, if that is what it takes. Ultimately, it is worth the $200 to $500 that you will spend for a thorough search.
Naturally, Google is often a cheaper option. It doesn’t always provide accurate results, but it at least gets you close. In this case, Google probably would have provided addresses for close family members, and for the purpose of sending cards or gifts, they can pass on communications.
Step 2. Send money and cards.
Ideally, after step 1, you have the address of the child. However, even if all you have is the address of a grandparent, an aunt, an uncle, or a cousin, start sending things. Send money with notes that indicate that the money is to be used for the child’s care. Send birthday cards, Christmas cards, Easter, or any other holiday that you can think of.
Make sure that all money and cards are addressed to the child and not to the parent. It is with the child that you are trying to establish the relationship. You don’t care about the parent. You care about your child. Show it.
Step 3. Initiate legal action as soon as possible
Once you know where your child is living, hire a lawyer, establish your rights, set a visitation schedule, and a support schedule. You may not always need to do Step 3, but nothing says I want to be involved like a court order.
In our hypothetical above, Dad had clear signs that Mom was going to present complications. He had lots of reasons that he should have thought that hiring a lawyer early would have been the smart move. Steps 1 and 2 help delay any problems, but the lawyer is the only way that you can truly be sure that you have secured your rights.
If you need a lawyer in Bakersield, California, consider Coleman & Horowitt.
What about Dad’s Defenses?
In a situation like the above, Dad is going to attempt to claim victim status. If he’s got a good lawyer, he will try to make the following arguments. They will all fail:
- Mom left him. Thus, Dad never “left” under the meaning of the law.
- Mom blocked all communication, thus Dad should not be punished for failing to communicate.
- Mom refused support when offered, thus Dad should not be punished for failing to provide support.
- Dad never intended to abandon the child, and the lawsuit establishing parentage is proof.
These arguments fail for the following reasons.
Failed Argument: Dad never “left” because it is Mom who left him
The case we turn to understand what it means to “leave” under California law is In re Amy A (2005) 132 Cal.App.4th 63. In Amy, Mom left Dad, and Dad argued that he was not the one to leave.
While the story of Mom and Dad started differently than our hypothetical, the relevant part of the factual background reads as follows:
[Mom] married [Stepdad] in July 2002 and moved to San Diego in September 2003. [Dad] testified that he never contacted [his child] after December 2001 because [Mom] had moved to San Diego and “cut off contact” with him. [Dad] also testified, however, that he made no attempt to find out [Mom’s] new address from family members such as [Mom’s] parents or [Mom’s] sister. [Mom] testified that she did not ask her sister and brother-in-law to withhold her San Diego address from [Dad], and they had her address because they had visited her several times in San Diego.
In re Amy A. (2005) 132 Cal.App.4th 63, 67 [33 Cal.Rptr.3d 298, 300]
Dad argued that he never “left” his daughter in the care of Mom and thus he did not abandon her under the meaning of the statute. However, the court writes:
[W]e reject [Dad’s] arguments because substantial evidence supports a finding that although [Mom] physically took [their daughter] away to California, [Dad] voluntarily surrendered his parental role, and his inaction in the face of the judicial custody order provides substantial evidence that he “left” [his daughter] in [Mom’s] care despite the existence of that order.
In re Amy A. (2005) 132 Cal.App.4th 63, 69 [33 Cal.Rptr.3d 298, 301]
The court looks to the entire history of the relationship to determine if Dad “voluntarily surrendered his parental role.” In Amy, the court considered the fact that Dad was the first to suggest that Mom move out. This was early in the relationship, while their daughter was still young. Although Dad maintained a relationship for several years, when she moved away, he made no attempts to find them.
This case is distinguished by another, which is unpublished and uncitable in California courts. In that case, the court found that Dad did not leave Mom. The distinction is that Dad used exhaustive efforts to attempt to find Mom after she left. Thus, he never surrendered his parental role.
Failed Argument: Dad’s paternity suit proves that he never intended to abandon the child.
This argument was made in Amy (see above). Because I discuss Amy above, will not rehash the details here. Dad argues that because he filed a lawsuit that he never intended to abandon his child. However, he admits that there was a two-year period where there was no contact or support. This is a separate and distinct period from the period that occurred after Mom moved his daughter to San Diego.
The court rejected his argument:
The undisputed fact that [Dad] had no communication with [his daughter] and provided no child support for over one year gave rise to a presumption that [Dad] intended to abandon [his child] (§ 7822, subd. (b)), but [Dad] contends he rebutted that presumption. He argues that he “did take action which demonstrated he did not intend to wash his hands of his child. He put his daughter on his medical insurance; he traveled to California to visit her; he intended to seek custody of [his daughter], but [Mom] got to the courthouse first; and he opposed the petition to terminate his parental rights.” [Dad] also points out that although he did not pay child support, [Mom] never asked him to do so.
We reject [Dad’s] argument because the record shows that [Dad] failed to rebut the presumption of his intent to abandon. First, [Dad’s] testimony that he attempted to put [his daughter] on his medical insurance does not preclude a finding of abandonment because the trial court was entitled to credit [Mom’s] testimony that she never received any medical insurance information from [Dad]. Second, [Dad’s] three short visits with [his daughter] over the span of six years do not preclude a finding that he intended to abandon [her] because he made those visits under the guise of being a family friend rather than her father, and the visits took place before December 2001 when the statutory one-year abandonment period commenced. Third, [Dad’s] claim that he would have sought custody of [his daughter] if [Mom] had not beat him to it does not preclude a finding of intent to abandon. [Dad] did not appear in the custody proceedings, never attempted to obtain a modification of the custody order, and did not meaningfully exercise the visitation rights given to him in the custody order. Fourth, the fact that [Dad] opposed the petition to terminate his parental rights is not relevant because the proper inquiry is whether he intended to abandon [his daughter] during the one-year statutory period before the petition was filed. (In re Daniel M., supra, 16 Cal.App.4th at p. 885, 20 Cal.Rptr.2d 291.) Finally, the fact that [Mom] did not ask [Dad] to make the legally required child support payments does not negate the fact that [Dad] indisputably provided no support to [his daughter]. In sum, we conclude, contrary to [Dad’s] assertions, that substantial evidence supports the trial court’s decision that [Dad] left [his daughter] in [Mom’s] care and custody with the intent to abandon her for the statutory period set forth in section 7822.
In re Amy A. (2005) 132 Cal.App.4th 63, 71–72 [33 Cal.Rptr.3d 298, 303–304]
Failed Arguments: Mom blocked communications. Or Mom refused support.
Throughout all the case law, what the other parent does is not relevant to whether or not the parent losing rights ought to be terminated. If Mom blocked support or communications, the court will look to whether Dad continued to send support and communications, even if the child could not receive them.
We see this in In re T.M.R. (2004) 41 Cal.App.3d 694. In T.M.R., Mom was incarcerated. She sent letters to her children. The children were dependants of the juvenile court during the time she was imprisoned. The juvenile court sought to terminate Mom’s rights claiming abandonment, and the trial court found the communications did not count because the children could not read them. However, T.M.R. overturned the trial court’s conclusions. Even though the children could not read the letters, what mmatters was that Mom continued to send them. (T.M.R. at 699)
Who to call . . .
If you live in Bakersfield, California, and need help with a case involving child abandonment, we are here for you. Whether you wish to end the other parent’s rights or defend against a claim, you can call us. Call Coleman & Horowitt.