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dpnroxy · Oct 22, 2008, 06:40 PM

Ok so here's the backround for the story. My fiancée has a 5 yr old daughter, the problem is he's not her legal father. Another man signed the affidavite(sp?) when she was born and he is listed as the father on the birth certificate. She knows the man on the birth certificate and "knows" he is dad, but she hasn't seen him much since she was born because he was in jail and calls him by his first name. My fiancée on the other hand has been there to bond with her, she calls him daddy and comes to our house all the time. The mother refuses to get a paternity test done and because she is over 2 yrs old the man on the birth certificate can't request one, so I've been told. In the past 3 months the mother has had the child maybe 4 days total, she is a meth addict and bounces around from place to place. How do we get a paternity test? And if she is my fiancee's how do we get custody?

Fr_Chuck · Oct 22, 2008, 06:51 PM

Your fiancée files a motion in court for a DNA test, happens every day, he should have a family law attorney, since once proven, he will also then owe 5 years of back child support

dpnroxy · Oct 22, 2008, 07:08 PM

That was the other thing I wondered about, is if the other guys has paid some of the support(during the short times he was out of jail or on work crew) how does that work? Does she have to pay him back and then my fiancée pay her? Or is the support he's paid counted as paid and my fiancée just has to pay what he didn't?

stinawords · Oct 22, 2008, 07:36 PM

Some of the support issues depend on the state. But first things first your fiancée needs to go to court to petition the judge to order the DNA test.

dpnroxy · Oct 23, 2008, 08:57 PM

We live in Washington state, I'm not sure what the rules are.

stinawords · Oct 23, 2008, 09:19 PM

Honestly, at this point I wouldn't even worry about the support because there are bigger things to look at first. The first being him going to court to petition for a DNA test. Then if it comes back positive he can request visitation. It is very hard to just take over custody. You will also need to remember that you have no legal standing what so ever even if the court ordered DNA test comes back that it is his child. He will have to be able to prove the mother unfit in order to take custody from her after the results come back that it is his child. He may want to get to work on this soon though because the longer he waits the harder it will become.

cadillac59 · Oct 23, 2008, 09:41 PM

How can anyone answer this question without knowing what jurisdiction the person is in? The laws on this vary from state to state throughout the US and in other countries.

I'm a Certified Family Law Specialist in California if you are interested in CA law.

cadillac59 · Oct 23, 2008, 10:07 PM

Originally Posted by Fr_Chuck

Your fiancee files a motion in court for a DNA test, happens every day, he should have a family law attorney, since once proven, he will also then owe 5 years of back child support

But it's been more than 2 years since the child's birth and you typically have to file a motion to set aside a voluntary declaration of paternity within 2 years of the child's birth; and then you still need standing. Is this fellow a presumed father by having taken the child into his home and held her our as his own? Yes? No? If not, no standing because he's not a presumed father and the case, with the request for a DNA test, gets tossed out of court. This is an extremely complicated area of law and one that cannot be disposed of as easily as you suggest.

cadillac59 · Oct 23, 2008, 10:10 PM

Oh, and you cannot get "back child support" for 5 years. No way, not in California. Child support can never be retroactive to any date earlier than the date of filing of an action to establish paternity. The law is likely the same in WA since much of their family law is patterned after ours. So forget the CS argument on retroactivity.

cadillac59 · Oct 23, 2008, 10:32 PM

It might be impossible to get a DNA test for the reasons I cited (more than 2 years have passed since the child's birth) so, with that in mind, it might be easier to get a guardianship. Sounds like a good case for one. Give that some thought since you have an unfit mom, an absent legal father (the pop-dec dad) and the child presumably in the household of the bio-dad (?).

dpnroxy · Oct 25, 2008, 09:11 PM

Originally Posted by cadillac59

It might be impossible to get a DNA test for the reasons I cited (more than 2 years have passed since the child's birth) so, with that in mind, it might be easier to get a guardianship. .

What exactly is guardianship and how do you accomplish this? My fiancee's daughter is with us or his mom most of the time. In the past 3 months her mother has had her maybe a week if you add up the random times she took her. Her mother also informed me today that the legal father wants to sign his rights away, does that help us out at all?

cadillac59 · Oct 26, 2008, 01:45 AM

Originally Posted by dpnroxy

What exactly is guardianship and how do you accomplish this? My fiancee's daughter is with us or his mom most of the time. In the past 3 months her mother has had her maybe a week if you add up the random times she took her. Her mother also informed me today that the legal father wants to sign his rights away, does that help us out at all?

A guardianship is the establishment of a legal right in a non-parent to custody of a child and brings with it a right to receive child support. If the child has been in the care of a person who has acted as a parent and has taken on the role of a parent in the child's life for a substantial period that person may petition a court for guardianship. Under these circumstances is it presumed that returning the child to a parent's custody would be detrimental to the child and that leaving the child in the care of the "defacto parent" would serve the child's best interests. If the father is willing to sign over his rights he surely would have no objection to a guardianship, which helps.

A guardianship sounds like a possible way to go and may be the only solution in this case.