A Biological Father Needs To Fight For Custody When the Mother Is Dead?
Saturday, April 28, 2007
Rinaldo Del Gallo, III, Esq.
Spokesperson
Berkshire Fatherhood Coalition
Practicing Family Law Attorney
http://www.berkshirefatherhood.com/
413-445-6789
A Biological Father Needs To Fight For Custody When the Mother Is Dead?
According to a story by Associated Press journalist, Jessica Robertson, “A Bahamian court cleared the way Friday for Anna Nicole Smith ’s ex-boyfriend [Larry Birkhead] to leave with their baby daughter, rejecting an appeal by the mother of the former reality TV star.†The question remains as to a biological parent and a grandparent, how could the grandparent possibly make a claim for custody? Howard Stern—unrelated to the famous namesake radio personality—was listed on the birth certificate. Until a paternity test was conducted, it was not sure if Howard Stern or Larry Birkhead wsa the father. According to the AP article, “Stern has been an unlikely ally for Larry Birkhead, having vowed to ‘do whatever I can to make sure he gets sole custody.’â€
Unless Larry Birkhead was unfit, why in the world should a grandmother make a claim for custody? It is nothing more than a female sense of entitlement, one that is encouraged by American Courts. From newspaper accounts, in no way was Virgie Arthur a de facto parent—she happened to have the right genitilia and was a blood relative. The fact that a grandmother would even think about attempting to get custody says volumes are the disrespect fathers have of their natural rights. In fact, fathers have even been attacked for referring to the right of parenthood—a long time recognized constitutional right—instead of focusing on the child. Of course, this is to suggest that parent’s rights to the care and society of his child is somehow at odds with the interest of the child—and well, that’s just sick.
Ironically, according to Starpulse News Blog (4/28/07), “But Birkhead isn’t sure he is liking his time in the spotlight.†As father’s rights activist, I tend to agree—he and Alec Baldwin have been in the media too much, and regular fathers have not. And I have no doubt in my mind Mr. Baldwin and Mr. Birkhead would be the first to agree. While the courts may mistreat Mr. Birkhead and Mr. Baldwin, millions of other fathers suffer in a way that is completely unnoticed by the media. Mr. Birkhead may have actually won his case (for now), but he was actually competing for custody when the mother was dead!
Today, there are 661 hits on Google news for the story about Larry Birkhead getting custody of a child. Fathers’ rights activist almost never get that type of attention, because hey, we are “only†talking about the children of people that were not millionaires and celebrities. And then people wonder why men dress up like the Flinstones and climb Stonehenge to get attention. That’s because unless you are a celebrity, the media does not care when you lose your child.
About Rinaldo Del Gallo Rinaldo Del Gallo, III, Esq. is the spokesperson of the Berkshire Fatherhood Coalition, whose website is BerkshireFatherhood.com. He has been practicing family law attorney and has been a member of the Massachusetts bar since 1996. Mr. Del Gallo has handled a wide variety of family law cases including issues of child custody, child visitation, child support, restraining orders, grandparent visitation, contempt of family court, access to academic records, guardianship, allegations of abuse, criminal allegations related to domestic violence, disputes over the care of a child, and care and protection proceedings before the Department of Social Services. For years, he has hosted bi-monthly free legal seminars for people of any gender having problems in family court. On behalf of non-custodial parents, he has had made numerous media appearances in printed news, radio, and television. He has authored numerous family law related articles and columns. He has performed extensive bro bono work for fathers. Attorney Del Gallo also has extensive experience as a civil rights attorney, working in the areas of free speech rights and ballot access. Mr. Del Gallo is also an intellectual property attorney and a patent lawyer, and has written what is regarded as one of the most famous law reviews in the area of patent law, “Are Methods of Doing Business Finally Out of Business As A Statutory Exception?,†that helped end the so-called “business method exception,†which paved the way for an entire field of software and Internet related patents. Attorney Del Gallo graduated from Northeastern University (Boston) with a Bachelor of Science degree in Electrical Engineering, and graduated from George Washington University (Washington) in the top of his three-year class. | More from Rinaldo Del Gallo, III
Stumble It!
April 28th, 2007 at 11:53 pm
Nice one, Rinaldo.
April 29th, 2007 at 12:33 am
Thank you!
April 29th, 2007 at 5:13 am
In actual fact, that fathers can now usually get custody in most US states over a grandmother, aunt, or foster mother, as has been the historically and precedently established custom, when the mother is dead, incarcerated or otherwise institutionalized, is the one bright spot in or accomplishment of the fathers’ rights movement over the last two decades or so.
The Census Bureau observed it, and the IRS `discovered’ it in the course of its data mining looking for tax fraud: at first it was suspicious when it saw steadily increasing numbers of single men claiming child dependents and credits, etc.
That fathers do often have to unnecessarily fight to establish paternity and gain custody reflects the inertial lag in the legal system in coming into line with reality, and such nonsense as the persistence of the archaic husband-as-putative-father rule. It is time for the legislatures to act and put an end to the bullogna that the lawyers and judges continue to grind out.
Of course if the mother isn’t dead or materially unavailable, and elects to reject coparenting, a father still has no practical chance of being a parent to his children in any real sense.
The proper response to the spurious but frequently disingenuously raised claim that a child’s rights stand in a reciprocal or zero-sum relation to his parent’s rights, is to note that while children certainly have rights in a colloquial sense, and have moral rights, they have _no_ legal rights because they don’t have _standing_ to petition, file motions, etc., in court. The issue thus always devolves into: who speaks for the child, the parents or someone else? Those who shout that respecting children’s rights means restricting parents,’ are in effect answering that it should be a judge.
April 29th, 2007 at 7:53 am
Money.
She doesn’t give a rats ass about the kid. She wants to be in control of the money. And in all honest, I think the father may have somewhat a sweet tooth for the money as well.
Sad.
TMOTS
April 29th, 2007 at 5:56 pm
I appreciate all your comments. There is no doubt about it, a father usually wins against a dead spouse. But the fact that there is uncertainty at all demonstrates how deteriorated things have become. Unless the man was plainly an unfit father, the state of the law should be such that the maternal grandmother should thought her lawsuit was frivolous.
April 29th, 2007 at 6:51 pm
Regarding an out-of-the-picture mother things have definitely improved, but the legal process is still a clumsy patchwork of case law, and not eveyone has gotten the message: old habits die hard.
When the parents agree to joint custody they are also more likely to coparent significantly now, which is more a consequence of improved societal attitudes than of legal innovation or reform.
However, if an unscupulous mother wants to nix joint custody she usually can, and in at least some states is gaining in the extent to which the law assists her designs.
Although one can still find, e.g., teachers and pediatricians who will condescend to all fathers, it’s mostly accepted now that fathers can be fully competent parents; but if he’s forced to go up against the mother, she’s given the stronger, upper hand.
The idea that family law was juster or more rigorous in some mythic past is wrong: an inversion of the actual history. The reforms we seek now will be a first, if we ever get there.