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Non-Violent Felon on Parole, Child Custody
Gentle Rose
nyxelestia wrote in little_details
Setting: Modern-day New York, centralized in New York City (Manhattan); fandom is White Collar, if it helps
Searched: variations of nonviolent offender, parole, felon, and child custody

My character is a man convicted of a non-violent felony, currently on a work-release parole working for the FBI as a criminal consultant. His girlfriend gave birth to their child (yes it's his, there will be mentions of paternity tests) at a hospital, gave the doctors contact information for the father's FBI handler, then took off. Neither of them have any family or living relatives.

I am trying to find a way for him to legally be taking care of the child, and I would like to avoid handwaving it away as much as possible. I tried looking up how this situation would play out, but just about every search led to questions of visitation rights, whether men on parole could have any form of joint custody with their children and the extent of their visitation rights, always under the assumption of the kids being with their mother.

I'm assuming that because the CI is still technically in someone else's custody, he can't have complete custody of the child on his own.

1.) Is my assumption unfounded - can he straight up have full custody of the child? (What about the mother? There is no way to contact her, so does she get any custodial rights? Would she not get any due to not being present, or would her leaving the baby behind at the hospital be legally read as giving up all custodial rights to the child? While she never gave her information, the CI and his FBI handler know who she is - can they put her name on the birth certificate?)

2.) If the CI can't have legal custody of his child, who can? As mentioned, he has no family for the baby to go to. The CI's landlady is very close to him, and in the context of the story willing to either adopt the child or hold custody of the child until the CI is off parole. If neither of those are possible for her to get custody of the child, she is also willing to adult-adopt the CI, thereby becoming the infant's legal grandmother - would that allow her legal custody?

3.) Any other suggestions? The fandom's canon does a lot of law-bending and cover-ups, so I can handwave my way through it, but I would really, really, REALLY rather not. The main goal here is for the father to be taking care of the infant, something fairly simple which is really only complicated by his current criminal status.

Further information:

The father, as mentioned, is VERY non-violent (he's noted in canon for having a strong aversion to violence despite his circumstances). He lives in a very good neighborhood, in a very nice house (mansion, actually, with lots of staff on hand - most likely a nanny of some sort would be employed for the times when the landlady and the father are at work/doing whatever). If Child Protection Services comes by to evaluate him, they will probably like what they see. The mother and father are not married; that said, the child was conceived in a conjugal visit in prison (achieved via nondescript rule-bending/law-breaking on various characters' parts).

For anyone familiar with the fandom, the mother is Kate, and this takes place around mid-to-late Season 1.

1st? Neal as Daddy? Hysterical! & June? Oh my god, PERFECT!

I don't have a LOT of answers (others will), but I suspect Kate leaving the baby at a hospital would make it easier for Neal to adopt.

Here's a decent article for starters :> http://www.livestrong.com/article/155810-felony-conviction-child-custody-rights/

I think a lot would depend on the measures Kate took. As in, did she declare Neal the father on the birth certificate, did she sign any papers stating that she wanted the father to have custody even though he's a felon, that sort of thing.

Really glad you asked this, I was going to ask almost the same thing so I'll definitely be tracking this post. :)

The idea is, she showed up at the hospital already in labor, gave birth, and basically told the nearest person, "Find Peter Burke of the FBI", and ran for her life before anyone could get anything out of her. (In this story, Peter will already know that she's pregnant, and that Neal is the father - or at least that's what she's been claiming while pregnant - so he knows to immediately have a paternity test done with Neal).

Then if Neal's already on work release he should be granted custody. There would probably be some bureaucratic hoops to jump through, but he isn't violent or still physically in prison, and he has housing and a stable income.

Not too difficult actually, felonds - violent or otherwise - do not lose custody of hteir children unless they're convicted of sex crimes against children, even then, not neccesarily

As long as he's actually not in jail, there'd be little issue - however if he does go back to jail he either needs to have set up legal guardianship (relatives or landlady) or the child would go to foster care/group homes until he's out of prison.

His criminal status is not the issue, it's whether or not there's an adult to care of the child.

Peter could probably go to bat for him. Not that he could really affect the outcome, but he could state that he believes Neal to be a competent adult capable of caring for the child, and the word of Neal's FBI handler would presumably carry some weight with CPS.

Whether he would is a different question.

I work for New York's Office of Children and Family Services.

Conviction of a non-violent felony is NOT grounds for termination of parental rights. If he's not actually in prison, he could assume custody pretty much right away.

If he is in prison, it gets a little trickier because of something called the Adoption and Safe Families Act, but as long as he either manages to get out of prison and seek custody before the baby is 15 months old OR shows in some other way that he is interested in being a father to this child, you're probably fine.

You may find this PDF helpful.

It is extremely helpful, thank you! :)

My question is on the basis that he is in a house-arrest tracking anklet, and he has a two-mile radius he can be in. Between that restriction and the fact he is in the legal custody of his handler, could he still have custody of the child? Either from a practical standpoint of his radius, or the legal standpoint that someone in custody can't have custody of someone else, it seems like he may not.

Well, if a teenage girl is in foster care or a Person In Need of Supervision or JD, and she has a baby, the baby is legally in her custody unless something happens to get CPS involved. (We have a weird technical term for this that I have no idea of the origin of - "8D Baby" - that gets put on billing for services.) In that situation, the baby takes up a bed/slot/whatever in a foster home or group home, but the baby is not legally a foster child - the teen mom still has legal parental rights/responsibilities.

There are also some prisons in NYS where incarcerated mothers are actually allowed to have their infants (up to 18 months old) with them. So house arrest/electronic monitoring shouldn't be anywhere near as much of an issue, I would think?

I've done some research into NY custody laws for a fic of my own, so I'm hardly an expert, but I think you might have to worry about more than just blood tests in establishing paternity.

When a child is born to a married couple, the automatic assumption is that the husband is the father and has rights, but if the parents are unmarried the father has to establish paternity legally. This PDF talks about unwed father's rights; pages 69 and 70 are on New york. Establishing paternity can be done by signing papers at the hospital, but I don't know if that would be possible in this case with Kate not there to swear that Neal is really the father. He might have to actually file a notice of intent to claim paternity or an instrument to acknowledge paternity with the family court (both can be found here), which may take some time to process, during which the baby might get placed in some kind of temporary foster situation. (If you want you can probably have Peter and Elizabeth or June be the temporary foster parent/s.) But without a mother fighting against him, he should be able to get rights without much trouble. Custody, that is, whether the child lives with him, would be a seperate matter, but I think others have already answered that. I think it would only come to a hearing before a family court judge looking at his criminal record and DNA tests if someone were actually fighting his paternity claim.

Also, unless someone from the FBI gets to the hospital pretty quickly and either takes temporary custody of the child (don't know if the FBI can legally do this or not) or tries to block them being sent to foster care, if Kate didn't tell the doctors who the father was the baby night be classified as abondoned and go into the foster system automatically. Not sure on that, though; she might need to actually sign papers saying she's abandoning them, and awyway there'd probably be some kind of search for her and attempt to contact Peter before the doctors actually get to calling child services if papers aren't signed. Either way it shouldn't keep Neal from getting rights once the notice of intent to claim paternity goes through. One the other hand, if the baby isn't classified as abandoned, Kate would still have parental rights and be able to come back and apply for legal custody of the child at any time.

Edited at 2012-02-28 09:07 pm (UTC)

I probably should've thought about that. I'm trying to have Kate give as little information as possible when she gives birth to the baby (she doesn't even give her own name at birth), and effectively trying to distance herself from the infant as much as possible. If she says something like "Neal Caffrey is the father, Peter Burke at the FBI can find him", what would the legal results of that be? Would Neal still have to file a notice of intent to claim paternity? If so, how long does that take? I get the feeling that with a baby actually laying parent-less in a hospital, people would want to move things fast, but bureaucracy is apathetic at best.

On that note, she doesn't give her own name to the doctors at the hospital - but she is identified by Peter and Neal on the security tapes. Can the hospital still put "Kate Moreau" as the mother on the birth certificate?

Okay, I've done some more research and it looks like having the father's name on the birth certificate isn't enough to establish paternity, so her saying it probably won't be either. The papers that would normally be signed in the hospital -this is the acknowledgement of paternity I mentioned- definitely won't work here, as they require the mother to name the father on them. It looks like the notice of intent form wouldn't be used either- it doesn't actually establish paternity, just tells the mother that the father wants to do so.

Neal would have to file a paternity petition, and the time between him filing it and a judge looking at it would depend on the number of active cases in the court system at the time (I think the FBI could probably influence this if you want them to). I think it would take at the very least a day between filing the papers and getting a hearing, just for processing them. He'd need to have the DNA test results with him at the hearing, so depending on how long that takes they might need more time anyway, but once the hearing starts paternity would be established as soon as the judge had seen all the evidence, probably within a few hours in this case. According to this, paternity petitions can definitely still be filed even if the mother is missing or dead, so that looks like the only thing that's going to work.

As for the birth certificate, unless the father consents to have his name put down while the mother is writing it, it takes a court ruling of paternity to put his name on there even if he claims the child later, so I'm inclined to say Kate's won't be on it unless they can prove definitively that it was her. Birth certificates don't need to be made immediately -I know because my cousin was nameless for ten days- so unless someone from child services decides to make one for the baby, if Neal gets custody within a few days he could still name the baby himself. The child might legally be refered to as "Baby Doe" or some made up name followed by Doe until the birth certificate was written up.

For who would keep the baby until then, it's probably something you can play with. I think it might be easier if the baby had some kind of issue like jaundice that would keep it in the hospital until things got cleared up. Then you wouldn't need to worry so much about who's taking care of them since it would be the doctors, and there'd probably be less paperwork involved, less need to have a birth certificate. A child services rep could be appointed to make medical decisions, or the FBI could interfere to get Peter or someone else named temporary foster parent with the right to make medical decisions, if you want Neal to be able to have some say in that. If you don't want the baby to stay in the hospital, the temporary foster situation would probably be easiest. I seem to recall an episode of L&O SVU where Olivia was able to take temporary custody of a child during a case because she was a registered foster parent, so I don't think it'd be too unbeleivable for the FBI to get someone they trust appointed as the child's guardian. There was another episode where Eliot took a little boy home without any kind of paperwork because it was past time for the social services offices to close, which would certainly simplify things in your case. This would only work for one night, though, so if you wanted to do it you'd probably need the FBI speeding up the court proceedings.


These are some documents with a lot of info about paternity-
http://www.lawny.org/index.php/advocate-page-attorney-resources-119/38-public-advocate-information/171-paternity-for-advocates
http://www.inmotiononline.org/assets/pdfs/TheBasicsSeries_English/Paternity_Proceedings_in_NYS.pdf
http://courts.state.ny.us/courts/nyc/family/faqs_paternity.shtml#pa5

And this will walk you through the process of filing the paternity petition, if you want some realism-
http://www.nycourthelp.gov/diy/paternity.html

You might also want to check the Safe Haven Laws for New York as well (because all 50 states have some form of them but they vary from state to state) as it would define what happens to a motherless infant left at a hospital (safe haven).

From what I'm seeing the law reads as follows:

New York Safe Haven Law:

Penal Code 260.03; 260.15 & Soc. Serv. Law 358-a

You can leave your baby, up to 30 days old, with any responsible person at a suitable location in New York.


(PDF here: http://www.nationalsafehavenalliance.org/states/newyork/NewYork_Safe_Haven_Law.pdf )

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I don’t see any problem, the father is already on parole right? So he should be granted of shared custody of his child, and since he already has work in the FBI, surely he can help in the expenses for the child.

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