▶ Your Answer :
In
this case, after five years of marriage, Kim, the mother of Charles, left John,
the non-biological father of Charles, taking the child with her, filed a
complaint for divorce due to incompatibility, and demanded sole custody of
Charles, looking for ways to challenge John’s paternity. On the other hand,
John has no intention of forgoing his custody of or visitation with Charles. Meanwhile,
Lee, the biological father of Charles, has sought to have his paternity recognized
and get custody of or visitation with Charles. However the mother rejected their
demands.
The
question is whether John can maintain his custody of or visitation with Charles
and Lee can have parental rights and custody of or visitation with Charles
despite the rejection of the mother.
First
of all, “the best interests” of Charles should be taken into consideration in
any custody decision. The fact that John had also taken physical care of
Charles after work before she left him and had intention to pay child support
even during divorce proceedings does not deny that he deserves to have joint
custody of or visitation with Charles. In addition, there is no evidence for
John to seriously hinder the mother who mainly provides Charles’ care from keeping
a healthy relationship with Charles and Charles even called John “Daddy,” which
means John can keep playing a “significant role” of father even after divorce.
On
the ground of the best interests of Charles, sole custody to John may be
improper due to the fact that mother mainly offers Charles’ care, which means Charles
is already mentally and physically attached to the mother in all significant
respects. Sole custody to the mother may also not be the best options since John
already spent five years and has had strong attachment with Charles from birth
by taking part in Charles’ physical care. What is worse is that impeding John’s
chance to meet and support Charles with constant and intimate upbringing will
be critically detrimental to “the long-term best interests” of Charles,
resulting in the lack of paternal love. Therefore, for these reasons, mother
will fail in gaining sole custody of Charles, and the court will grant both
John and mother joint custody despite the fact that mother challenges John’s
paternity of Charles.
Regarding
Lee’s argument, who has married a woman, since mother and Lee had had sexual
intercourse and she got pregnant, however, Lee left her for his schoolwork, mother
and John has parental rights and custody(legal and physical custody). If Lee
demands custody of or visitation with Charles, he will have to prove his
paternity first and then his parental rights should be granted by a court. He
may be able to ask for recognition of his paternity and prove it, however, his
parental rights should not be granted based on “the long-term best interests”
of Charles since Charles is too young to understand the differences between
biological father and non-biological father, which can cause serious confusion
with Charles’ “mental development”, bringing up some questions, such as who is
the real father in such an early age.
What
is more is that since John maintains his paternity of Charles and has parental
rights without doing any harm to Charles, Lee cannot take away John’s current
privileges unless John hinders the best interests of Charles, leading to “a significant
change of circumstances”. Thus, custody award to Lee including visitation with
Charles will be impermissible even though he is the biological father until
Charles grows up enough to realize the reality or look for his biological
father.
All in all, based on “the long-term best interests”
of Charles, the court will hold that joint custody will be granted both John
and mother and Lee will be denied any custody of or visitation with Charles. |