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Fathers rights, never married to mother, name not on birth certificate
I have a 12 year old son that I just met last year. His mother and I never married each other, we had a private DNA test done which confirmed that he is my son. His mother married but now is divorced and my son lives with her ex-husband. Additionally the mother listed her ex-husband as the father. She has let him come up and visit me and my family (wife and daughter) 5 times since October 2007. I tried in 1997 to have a legal DNA test done, but was unable to. His mother has asked for child support since last summer (2008) and I said that I wanted this to be done so that I have legal rights. Since that time the mother has not let me contact him and has used my son as a pawn; i.e. not allowing me phone contact except a few times when I can catch him at his "dad's" house.
Since my son does not live his mother and is basically left alone without much parental oversight, what are my options and what is the possibility of having him legally in my custody? I have spoken with a lawyer in the county my son lives, and I am waiting to hear back from that lawyer. I have only been able to speak with the mother once since last summer, because she will not return my calls, and just this week she said that she had spoken with a lawyer and her lawyer said that the mother and I could draft our own "contract" which would include child support and visitation rights, we would have to get it notarized and then it would be legal binding contract. Does anyone have an opinion on this? I would hate to agree to something that does not give me legal rights that can be enforced by law. I appreciate it. |
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 Originally Posted by Alfred1971
You can go ahead with the notarized paper but it won't mean anything until you have a court-ordered DNA test which legally establishes yourself as the father. |
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Sorry about the confusion:
My son was born in October of 1996, his mother and I were never married... his mother left me (turns out she moved about 1,000 miles away) while she was still pregnant and I did not find her until Aug of 1997... at that time I filed paperwork with my local county to establish DNA... since she and my son did not live in my county it was moved to her county... long story short: it ended there. I met my son in Oct of 2007, a week before his 10th birthday. He has been up to visit me and my family a total of 5 times, but now his mother will not let him visit anymore until I start paying her child support. The mother is 100% against me going through the court system to get legal rights and so we can establish child support. His mother was married with 2 children when I met her, she divorced, got pregnant with my son, and then left me (while pregnant) to remarry her ex-husband, and she also listed her husband as the father of my son. She has since divorced her husband again (I do not know for sure when this happened) and some time later the mother contacted me and we agreed to have a DNA test done, which did confirm that I was the father. I called a lawyer and the lawyer told me (incorrectly) that I had ZERO rights to sue the mother for paternity because of a law that required this to occur within 2 years of the child's birth. My son does not live his mother, he lives with his mothers' ex-husband. Anyway, thanks for the info on the notarized contract... I didn't think it would be worth much, and I am just getting things started with a new lawyer, so I am sure things will be taken care of. Many thanks |
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State is California (I am not in Calif but the child and mother are), although the child was born in New Mexico.
I understand what you are saying, and I was told that before, so I ended up living these past 12+ years letting the mother dictate all communication and so on. I only first talked to my son in 2004, and met him for the first time in 2007. I did speak with a lawyer in CA and she has stated that I do have rights Apparently the mother also spoke a lawyer and she found out that I DO have rights, which is why she wants us to just have a contract agreed upon and then notarized instead of going through the courts... the mother is absolutley against me going to the courts to get paternity tests done, establishing access rights and child support. I can only GAIN here, nothing to lose... even if all I get is visitation and have to pay back child support, so what... at least I can be a part of my sons life and his mother can not keep taking him out of my life. |
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I think the lawyer that told you that you have rights is looking to soak you. Someone has been declared this child's legal father and I believe the window to challenge that has passed. The only hope you have is the reason why the case ended in 1997. The fact that you filed a petition for custody at that time may been your opening, but it's a long shot. |
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Originally Posted by Alfred1971
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Originally Posted by califdadof3
I actually said this same thing (the 2 year window to est DNA) to this new lawyer, and she said that I was incorrect. So I suppose what I will need to do now is contact a 3rd lawyer and see what he/she says. The frustrating part is that I have spoken to 2 lawyers and heard 2 different things. Also, I have read threads on this website that have supported my argument... like you said, I can give it a shot and see what happens... does anyone have a recommendation for family law lawyer that I should speak with? I would appreciate it. Thanks again. |
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This is a fairly complex area of law, which explains why you are hearing different things from different lawyers (guess what, somebody doesn't know what he is talking about! --not uncommon in family law in California I might add). You said, "I filed paperwork with my local county to establish DNA....since she and my son did not live in my county it was moved to her county.....long story short: it ended there." Whatever became of that "case"? Was no action ever filed? The problem I am having with this is that your son apparently is in the custody of his mom's husband; so, does this mean he was listed as a child of their marriage in their divorce and the court entered a judgment establishing him as father? I'd like to know. This is an interesting case from my perspective (I'm a family law attorney in California by the way, and a Certified Family Law Specialist). |
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Also, an afterthought:
First, there was no 2 year window to challenge paternity. The reason is the child was not conceived during the mom's marriage to the ex-husband (your son's legal father--presumptively I suppose). There would have been a 2 year window if this were the case (if you had fooled around with the mom during her marriage to this guy and gotten her pregnant). But even then, you might not have had standing to challenge paternity as it is. Now if the child was born after the mom married this guy then he would be a presumed father (what I call a 7611 dad -referencing Family Code section 7611(a)). Dad's with those presumptions can have their status as father challenged "within a reasonable time after obtaining knowledge of relevant facts." (Fam. Code Section 7630(a)2). So, how long that is, I don't know. Sounds like it may have passed in your case, unless you can say you didn't know the child was yours a decade ago. (?? ) Hum. I'm most concerned about the divorce decree between the mom and your son's legal father. Can you collaterally attack that judgment, do you have standing? Have you waited too long? Those are the big issues. Frankly, I wouldn't hole my breath. You could have challenged paternity and probably established yourself as the dad before the divorce of the mom and your son's legal dad. In fact we have an appellate case on that (Michael M v. Giovanna F (1992) 5 Cal. App. 4th 1272) in spite of the statute that would suggest you couldn't. But this divorce bothers me. If a court has already declared your son to be someone else's son (I mean have another legal father) I doubt you can challenge that now. Maybe. |
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I am also concerned for the son's sake. You may be the legal father, but he barely knows you. First he lost his mother, now you are talking about taking him away from the father he is accustomed to. Is a suit really in the boy's best interests? Why, by the way, is he not living with his mother at all? |
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Originally Posted by cadillac59
So that was 100% me not pursuing this case like I should have. All I know is what I am told by the mother... which could or could not be accurate: 1) she was married when I met her, with 2 children 2) she had a 3rd child and then was divorced 3) she became pregnant with her 4th child (my son) and moved in with me (1996) 4) she left my home and moved in with her ex-husband 5) in Oct 1996 she gave birth to my son, in the state of New Mexico... at some point before or after she gave birth to my son she and her ex-husband re-married 6) in 1997 I moved to No. Cal. and found out that she and her husband were living in the Sacramento area... I called her and told her I wanted to have the courts do a DNA test to find out if I was the father... she said no. 7) in 1997 I filed paperwork with the county I was living in, Sonoma, and had them try and do a DNA test... the mother hired an attorny and that attorney filed for a change of venue... at that time the mother contacted me and said that I was 100% not the father, and to leave her alone. 8) in 2000 I found her again and she agreed to do a DNA test through a private company, but she never showed up to do it. 9) in 2004 I was contacted by the mother and she said that she would agree to a private DNA test, which did confirm that I was the father... she allowed me to talk to my son on the telephone, which I did for about 3-4 weeks until she decided I couldn't do that anymore... at this time she stated to me that she was in fact divorced again for the 2nd time from her husband, but that they were still living together with her 4 chidren (1 of which is her ex-husbands), she said that the reason for the divorce was because her ex-husband was a homosexual (not sure if I believe that or not). 10) in the spring of 2007 I tried to contact the mother again, but this time she had my son call me and tell me that he hated me and not to call him ever again. 11) in the summer of 2007 I received an email from the mother with a picture of my son and a message telling me about his life... at that she agreed to let me be a part of my son's life... I asked if we should arange for a child support agreement and have this all done legally via the courts, and she declined, stating "you shouldn't have to be responsible for that"... I did offer to pay for his braces ($1500) and send money for any incidentles or sports so I could at least do something... she told me that if I could just pay for his braces and sports and plane tickets up to visit me that that would be fine... she agreed to let him fly up to visit me and my family at our home in Oregon. 11) my son has visited my home 5 times since Oct 2007, including last May when my daughter was born, and last August for 15 days. 12) the night before my sons late summer visit, I received an email from his mother stating that I needed to be "responsible" for my son and that I needed to start paying her ex-husband $300 a month and that I need not bother communicatiing with her. 13) I replyed that I didn't feel comfortable with just giving them money without any legal rights, but that I would instread start up a college fund for my son... she did not like my response, and since that time has not allowed my son to visit me since last summer. 14) the mother does not live with my son, she lives with a boyfriend in another city, but my son does visit during the week at times, and on weekends at times... my son lives with his mothers ex-husband (his father on the birth certificate according to the mother- which I believe to be true, but am not 100% certain), as well as with his 2 older sisters and older brother. 15) his has only text messaged me and emailed me since last summer, but she has only stated that in order for me to get any more visits from my son that I will have to pay her ex-husband money... I have had a chance to talk with my sone approx 8-10 times since last summer, but his mother never returns my calls and neither does his "dad"... and the only time I can talk to him is when he answers the phone at his "dads" house. |
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Originally Posted by Alfred1971
Gosh, this is a hard case. My impression is probably the same as everyone else's, that is, that you are probably going to be stuck not getting very far on this one unless you have a lot of money and time to put into this. I cannot say your case is a complete loser, but it's like taking a climb up Mt. Everest. If you were consulting with me I'd ask you to at least do a little investigation and bring a copy of the mom's divorce file with you (if she divorced in Sacramento you can do a search online under her name and locate the case number). Divorces are public information so you could go to the courthouse and get the file copied. If the disso judgment listed your son as having mom's ex-husband as the father, that means he's been established as the legal father. Everyone is going to be asking you why didn't you do something sooner, and that is the big problem. Ten years ago you would have probably been able to have been declared the legal father, no sweat. But now? Geez. And after the disso judgment? There might be some kind of constitutional argument to be made (what we call a "constitutional override" and if you really wanted to pursue this this might be the angle I'd be trying for you. You'd have to weave into the argument that the mom defrauded you in telling you you weren't the dad earlier. That might help. But again, this is not that easy. With some in depth research, I could probably come up with something a bit more creative (I'm just writing all of this off the top of my head)--I can always throw something together that a judge might smile at and say, "good try Mr.. very creative" but again, no guarantees. If I think of anything else, I'll let you know. |
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Originally Posted by cadillac59
Well, you make some great points... I have been trying to find public records of both a marriage and a divorce for the mother on the internet... only problem is that everything seems like a background check and a scam... if these records are made for the public, what is the best way to find them? I would like to know when (and if - because like I said before, I am not 100% certain that she ever was re-married or is even now divorced) these events occurred and how that all plays out for my argument... but even with all of these facts aside, wouldn't the fact that she has acknowledged I am his father and that she is asking for child support (written in emails and in text) be a good argument for me as well? I am obviously not an attourny and have zero experience in any of this, so one thing that troubles me is that I paid to talk to a lawyer nearly 2 years ago only to hear that I had NO legal leg to stand on/nothing to fight with... and then just a couole of months ago I spoke with another lawyer who said that I had every legal right to est paternity and fight for rights to visit and possibly have custody of my son... which one do I believe? And to drop $3k+ just to retain a lawyer and then to find out that it was all for nothing is hard pill to swallow... but I suppose that if I can get some info on my own it will help me make a decision on what to do - - - the problem is: I really have no idea how & where to get this info. This is the main reason I came to this website... I was told that there are websites that help guide people like into the right direction in matters like this. I will be looking some more tonight and if I still keep running into a bunch garbage, I will see if anyone of you has any ideas. Again, I appreciate your input - - many thanks. |
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When the ex's name was put on the birth certificate is when he was the presumed legal father and that was at birth so the courts had no reasons to question it. ( quote ) Additionally the mother listed her ex-husband as the father ( end quote ) Right now if you go to court you might get a conviction for extortion and colusion if you can prove that they are working together to try to get money from you. And when they are in jail you might be able to adopt. |
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Originally Posted by califdadof3
I just found out that they were re-married in August of 1997... now my son was born in Oct of 1996, so this shows that they were not married at the time of his birth (which I think is very good news for me)... as far as if and when they were divorced is still up in the air... I am not finding anything about them being divorced since their re-marriage in 1997... what is your take on this. As far as them trying to get money from me I have both emails and text messages from the mother saying that I need to send money to her "ex-husband" in order to see my son again. I just spoke with the lawyer today, and she has told me that I in fact may NOT be able to even sue for paternity if my son already has a "legal father", so that is what I am still trying to find out... I think that one part is already est in the fact that the mother was NOT marries when she gave birth to my son... I will be looking for the 2nd part, if it exists at all, that the mother was divorced and that the ex-husband was listed as the father of my son in the paperwork... I will let you know if and when I find anything. Thanks much |
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