How can the biological mother obtain sole custody of the child if the father cannot be located?

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How can the biological mother obtain sole custody of the child if the father cannot be located?

An unwed couple had a child 9 years ago. The father is not a US citizen; his name is on the birth certificate. There’s no court order in place. The mother left the state 8 years ago. She has now been married for 8 years to a military man and is living in anothr state. The biological father hasn’t been in the child’s life for 8 years. He’s whereabouts are unknown. The military family will be stationed overseas next year. The child will need a passport to travel. On the application it states that both parents need to be there in person and sign the application. This is not possible.

Asked on January 23, 2013 under Family Law, Virginia

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

To make things easier now and going forward, she should and can file a custody suit granting her sole custody of the child.  She can also ask the court to grant her the exclusive right to seek and obtain a passport.  With this exclusive right, she should not have any issues with getting the passport.  As a plan "B", she may also want to ask the court to grant her husband the right to be a co-managing conservator-- which essentially gives him the rights of a parent, without having to go through the adoption process.... he can then appear as the second conservator or "parent" by legal standards if it becomes an issue. 

Depending on the state that she lives in, she may want to consider terminating the father's parental rights considering that he has had no contact and has provided no support for eight years.  At the very least, she should easily be granted sole custody.  Even though it seems like a ways off, it would be better to start the process now.  Because the father cannot be located, she may have to utilize alternative methods of service in order to finish the custody suit, which can take a bit longer than traditional service.  For any of the options listed above, she would want to hire a family law attorney to help her.


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