mom wants to take daughter

[CdwJava]

Pro, you forget that mom can no more prove that she is mom than dad can prove that he is dad! At least in CA we do not issued documents indicating parentage that can be readily read and interpreted by the officer at the scene. And, I suspect that even in the states where you have lived you misunderstand what the response of the officer will be if he responds to a call like the one the OP expects might occur.

Let us assume that parentage is not an issue as mom admits that she left the baby with bio dad. Okay. The police officer gets there, mom says she wants baby back, but there are no custody papers. He arguably has equal rights to custody of the child absent some order to the contrary. So, the officer, failing to have any court order to direct him has THREE choices.

#1: Remove the child from dad and give it to mom. Okay ... now the officer needs to cite a legal authority to do this. What might that authority be? Hmmm ... is the child at risk? No. Is the child being held by a stranger to mom? No. Is the child being held for an illicit act? No. What then does the officer cite as his leagal authority to remove the child? There is nothing. Absent consent, he cannot (generally) forcibly remove the child from a person who ostensibly has equal rights to custody and visitation until a court has determined otherwise.

#2: Keep the child with dad. This is the general default choice when we respond to these situations. Unless it can be shown that the child is at risk if it remains with dad, the child will likely stay (absent court orders to the contrary).

#3: Neither party can agree and no consensus can be reached, the officer can choose to take the child into protective custody and turn him or her over to CPS. At that point, the parties get to go to court and hash it out and the officer goes on to the next call.

I strongly suspect that the police in those states you mentioned are not going to forcibly remove a child that has been left with dad for 2 months by mom when she acknowledges he is dad and that she effectively turned over temporary custody to him. If I were to receive this call, I would almost certainly leave the child with dad, would forward a referral to CPS and would consider a report to the DA concerning child abandonment (if it can be shown that this was a drop and run rather than a planned 'vacation' of sorts).

 

[Proserpina]

Pro, you forget that mom can no more prove that she is mom than dad can prove that he is dad!

We must be completely missing each other here.

Mom is automagically on the birth certificate - she is LEGALLY Mom. The BC is proof, since she CANNOT appear on the birth certificate unless she is the child's mother.

Dad, on the other hand? Mom could have slept with the local football team - HE has to PROVE that he's the father.

 

[CdwJava]

We must be completely missing each other here.

Mom is automagically on the birth certificate - she is LEGALLY Mom. The BC is proof, since she CANNOT appear on the birth certificate unless she is the child's mother.

And, nine times out of ten, the dad is on there as well. Plus, I have yet (in 21 years) had a caller produce a birth certificate when the police have been called to the scene of one of these disputes.

In my experience (and I have literally been on hundreds of these sorts of calls) mom will acknowledge that dad is dad, but that she wants to assert some special right that she does not have. And, vice versa ... dads will call to try and assert some right that HE does not yet have through the court.

Dad, on the other hand? Mom could have slept with the local football team - HE has to PROVE that he's the father.

And if mom says she left her child with a stranger, she can get charged, the child will get a ride to CPS, and the officer will be on to the next call. But, in reality, it just doesn't happen that way. In reality, the mom will call, admit that the guy is dad, admit that the child is not in danger but say she just wants him back. In that situation, the child will either stay with dad until a court order appears, or, will be taken to CPS.

Assertions of paternity and the like are often issues for the court. The officer called to the scene of a dispute like this will take limited action, and is limited only to that which is presented before him. There will be no birth certificates, there will be no hospital records, there will only be two bio-parents angry with each other and one claiming a non-existent right to take the child from the custody or temporary custody of the other. And, that won't generally happen.

Remember, we're talking here about what will happen if the police are called - not what he court might decide later on.

 

[army judge]

I am just a bystander in this conversation. But, let me offer a thought or two on why CDW JAVA's argument makes sense.
Absent a court order, how do the police determine who has custody of the child?
Sure, one might have possession, but that's not custody.
If, mom had a birth certificate, and dad had a valid custody order - BINGO.

Sadly, it's rarely that clear.
So, JAVA's reasoning makes sense. It's probably driven by SOP and his department protocol, and avoids legal complications, not only for the officer or deputy, but the taxpayers who fund their work.
He's not saying you're wrong, Pro, we see your point. But, he's pointing out further development of that point at his agency.
Great thread, folks.

 

[CdwJava]

Precisely the point! Thanks, AJ.

The officer who is called to the scene of this thing will generally not know the history, will not know the parties involved, and will neither be privy to or able to access any birth, court, or hospital records to show who might be related to who. And, since many non bio-dads can also have custody of children not their own blood, the police are left with a conundrum with only the law to guide them. In a situation such as this, absent compelling evidence to remove the child, there would be no statute that would clearly permit the officer to remove the child from someone who appears to have a lawful claim to the child.

Pro, while you would be correct that in court the mother will have the edge over the dad initially (unless paternity is already legally established through marriage or birth certificate and unchallenged), the question here was not what might happen in court, but what can the OP do to protect the child from being taken away from an apparently uninvolved mother. The answer to that would be: Don't turn the child over if she shows up, and immediately go to court and seek an emergency order granting custody.