Recently, the news wires have covered a heartbreaking story that likely happens far more often than most realize. Nearly three years ago, James Wolfe met adult film actress Latisha Anderson (known as Darcy Tyler in the industry) on a movie set. Their tryst resulted in a pregnancy. Afterward, James convinced Latisha to start a family with him in Wisconsin. After the birth of their son, they moved to Wisconsin. For reasons unknown, six months ago Latisha had a moving truck come to their apartment and she took all of the child’s belongings and hers and left town with the child, apparently to somewhere in Georgia. James has not seen his son since and has been fighting to obtain custody. Wisconsin just filed criminal charges.
Why did James end up in this situation?
When a child is born to a married couple, the law presumes the two parents of the marriage are the natural parents of the child, and as such, both parents have the same rights of custody to the child.
However, when a child is born out of wedlock, the law does not carry the same presumption of parenthood for the father, even if his name appears on the birth certificate. Rather, the law assumes only that the mother has custodial rights and the father must take affirmative steps in court to establish parental rights. Until the father takes those steps, he has no legal right of custody.
Does that mean that the mother can just take the child to another state without notice to the father? In Missouri the answer would be yes. Under our criminal statutes, a parent cannot be charged with interference with custodial rights unless the other parent actually has custodial rights, and that is not the case prior to an entry of a paternity judgment.
So what should a father do in an out of wedlock birth?
Any father that wants to assure he protects his legal rights to his newborn child must take quick steps to establish those legal rights. First, he should make sure his name appears on the child’s birth certificate. Second, he should promptly file a petition to establish paternity, custody and support in the family court. Once the petition is on file, and the mother has been served, the court will prohibit the mother leaving the jurisdiction until it has ruled on the paternity filing. In cases where the parents are not married but intending to reside together as a family, the parents can together file a paternity action that would establish rights of custody and support in a very simple manner, and can prepare all the paperwork in advance of the birth of the child.
The longer a father waits to establish paternity rights, the more opportunity he gives to the mother to walk out of his life with the child, creating the nightmare scenario James Wolfe currently lives.
It seems that we are long overdue to correct our paternity statutes so that at least when a father affirmatively signs a birth certificate he should be considered a parent with custodial rights so that the mother cannot just leave to another state with the child indefinitely and leave the father to locate and serve mother with a paternity suit.
If you have questions about out of wedlock births, paternity, custody and kidnapping, contact us – we can help.