Legal paternity ???? - Mothering Forums

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Old 11-09-2008, 10:27 PM - Thread Starter
 
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I really need some help. A really close friend of mine just left her husband. He was told the day she packed up and left. She has 2 sons 10 and 5. She took the 5 year old with her. She is with another man. She is saying that this is the youngest ds father!! We are all devastated. None of of us knew this was going on. I couldn't believe she left one of her children! I cant believe she has been cheating for so long...Well her husband wants the younger son back. He is the only father this boy has known. There havent been any test as this is only happen 4 days ago. I told him he should take her to court. Im wondering what chances he has to get the younger son if it turns out he isnt the father. If you know of any websites or any info please let me know.
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Old 11-09-2008, 11:22 PM
 
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I don't have any resources for you, but I have heard that the courts will often grant visitation to the father who has been present in their lives, bio-dad or not. I think your friend probably has a good chance, especially if the mom is admitting that she lied about it for this long. It's seen as in the best interests of the child to stay with the man he knows as dad, kwim? Good luck.

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Old 11-10-2008, 12:21 AM
 
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If he was married to her, then he is legally the child's father, and certainly was put on the birth certificate. This issue varies DRASTICALLY by state, but basically anywhere, he will likely get some rights......in divorce, the person to file first gets all the good stuff. He should go down and file, and say he wants custody of both kids and the house...since she left, he will have a REALLy good case...she will have to tell the court that the younger ds is not her dh's, and then prove it via DNA, but while all that is going on, they will move forward presuming he IS the father, since legally right now he IS, and they will likely have some sort of split custody while the case is being decided. It is REALLY important to get a GOOd temporary order in place, because when it is time to put the final order in place, after all the testrs and negotiations and fighting, etc, a HUGE part of teh decision will be WHAT THE CHILDREN ARE USED TO Which means that if they are with him most/some of the time, that is mroe likely to continue...if she gets them for the interim, she is more likley to get them permanently.
It's an ugly situation, and the best thing to do is get the best lawyer he can.....someone he specializes in fathers rights and is a bulldog.

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Old 11-10-2008, 12:27 AM
 
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(before I start, standard caveats: I am not a lawyer yet, and even if I was, this isn't legal advice.)

What state are they in?

Here in WI, a man is presumed to be the father of a child born or conceived during his marriage. This presumption is rebuttable, by DNA or other evidence, if it would be in the best interest of the child. Needless to say, I know of no judge or court commissioner (and I've worked with quite a few recently) that would take a 5-year-old's father away, genetics or not. (I've seen the presumption rebutted for an infant conceived while a couple was separated or divorcing, but still technically married. NEVER in a case where a man has raised a child as his own and then had this dumped in his lap. I suppose anything can happen, but it would be rare.)

That said, it would be pretty simple for the mother to have the boyfriend and child DNA tested privately, and some judges might establish some visitation for the biological father (who, if he's living with the woman and children, is already spending time with the child). But I couldn't imagine him gaining any parental rights. The husband will, in all likelihood (though again, I can't guarantee anything), get the same custody he'd be entitled to, either way. (Here, there's a presumption of joint legal custody, and as much time with each parent as practicable, assuming both are fit parents. In many cases, it's 50/50. Depending on the state, the wife's infidelity and seeming abandonment of her older son can be a factor.)

Your friend (the husband) should get a lawyer for the divorce and custody battle that he's likely in for, whether he's his son's genetic father or not. He is that boy's dad.

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Old 11-10-2008, 10:23 AM - Thread Starter
 
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[QUOTE=ProtoLawyer;12576445](before I start, standard caveats: I am not a lawyer yet, and even if I was, this isn't legal advice.)

What state are they in?

Thank you for the info. He lives PA. She has left the state.
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Old 11-10-2008, 10:38 AM
 
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[QUOTE=imani;12578015]
Quote:
Originally Posted by ProtoLawyer View Post
(before I start, standard caveats: I am not a lawyer yet, and even if I was, this isn't legal advice.)

What state are they in?

Thank you for the info. He lives PA. She has left the state.

(from PA here)

I don't know all the legalities... but he needs to go to a lawyer NOW! And she is going to be in BIG trouble.

When my DH went through the custody battle with his ex, his lawyer said up front she cannot leave the state and there would be legal reprecussions against her if she did. He is the HUSBAND and has way more rights. It would be different if they were not married... but your friend has a lot of ground to stand on right now.

The other big point... she left one son. PA considers that child abandonment... they are not going to look on that well in court.


If your friend acts now and goes to a lawyer ASAP... I would think he'd get his youngest DS back pretty soon.

Good Luck!!

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Old 11-10-2008, 12:13 PM
 
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Even if they weren't married, a judge may have a very hard time disrupting a 5-year-old's concept of who his father is over genes.

Keep in mind, also, that "he's not yours!" is often something flung in anger or spite rather than because it's at all true. (That's why, when I'm in paternity court acting as guardian ad litem for teenage boys who may have fathered children, I insist in paternity testing no matter how vehemently the boy, the girl, or their parents disagree--that way, it's absolutely settled up-front and it can't be used against any party later.)

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Old 11-12-2008, 07:26 PM
 
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If she's left the state, doesn't he need to file ASAP so that PA retains jurisdiction BEFORE she files in her new state of residence?
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Old 11-12-2008, 08:32 PM
 
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here in michigan, if a woman is married, the husband is the legal father of any child born or conceived during the marriage. Its called Lord Mansfield's Law and its in effect in many other states as well. even if the husband is found to not be biologically related, he is still the father unless motions are filed to exclude the child from the marriage, usually during a divorce proceeding. this is a very problematic law for biological fathers who want to see their kids, and legal fathers who don't want to but are forced to illegally.

(as our lawyer said - law trumps morals.)

i would get a GOOD attorney if i were the husband. we went through three before finding one who actually understood the case.
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