Please help! Very sticky situation. So, my ex-husband claims parentage by estopple with my 10yr old daughter whom is not his bio child. Quick rundown - we were married, and then separated in 2001. I and bio dad conceived. Things didn't work out and when I was 8 months, me and husband got back together. That didn't last long and I eventually moved out. I filled for child support with bio dad in 2005 but he was incarcerated therefore case was dismissed lack of prosecution. Now my question: How can I get this BS parentage/visitation removed? Facts: Neither has ever paid a dime. Bio not US Citizen, Child's last name is mothers maiden name. Let me know if you need further info.

Was the child born while you were still married?

Child was born in 2002 - so yes, but we did not live together and we were both in separate relationships. Ex-husband has known all along the child was not his. However, I did have another son in 2006 (while we were married also) whom he never claimed. Basically we went our separate ways and never bothered filing for divorce. He finally did because he became engaged.

If your in the united states then the legal father (presumed) is your ex husband. Unless there has been some challenge in a courtroom then he will remain the legal father regardless of DNA.

So basically, women can get married have a crap load of kids and stick it to their husband? This is the most ridiculous law EVER. The law should be if BOTH agree, then proceed. So what am I supposed to tell her bio dad? Uhh sorry but the law says even though their DNA doesn't match, she will have to call him Daddy. We live in a sick and twisted world.

Is there a statue of limitations on doing this? It seems unappropriate that all of a sudden he wants to be her "dad" after 10yrs. And isn't required to pay a dime for her?

Since you haven't revealed what state this is happening in then your not really going to get an answer. It varies by state. So without knowing for sure what applies to your situation there is no way to answer the question.

California

Here is the law and what it says. Basically there is a 2 year window for a challenge.

Challenging Paternity Judgments | Time Limitations (http://www.thurmanarnold.com/Practice-Areas/Family-Law-Statutes-Page/Family-Code-section-7646-Time-to-Challenge-Pater.aspx)

So basically, women can get married have a crap load of kids and stick it to their husband? This is the most ridiculous law EVER. The law should be if BOTH agree, then proceed. So what am I supposed to tell her bio dad? Uhh sorry but the law says even though their DNA doesn't match, she will have to call him Daddy. We live in a sick and twisted world.

While is don't disagree that sometimes laws don't make sense, that's not the case here. You are looking at this from the wrong angle and wrong interpretation of the law. In the US, when a child is born to a married couple, the husband is presumed to be the father. However, this is not absolute. That paternity CAN be challenged. It can be challenged by the presumed father or by the bio father. In some cases there is a limited window of time during which a challenge can be mounted. And there may be specific conditions for the challenge to be successful.

If its too late for the bio dad to challenge, that's not the law's fault that's your fault.There is nothing sick and twisted about it.

But on the flip side, it doesn't work both ways. The law states a child born durning the marriage is presumed the to be the husbands, yet HE had another child but I'm not presumed to be the mother. Now, you would say obviously that isn't possible being you didn't give birth to that child. But with the same valid point, obviously he didn't contribute his sperm.

Here is the law and what it says. Basically there is a 2 year window for a challange.

Challenging Paternity Judgments | Time Limitations (http://www.thurmanarnold.com/Practice-Areas/Family-Law-Statutes-Page/Family-Code-section-7646-Time-to-Challenge-Pater.aspx)

"Within a two-year period commencing with the date of the child' s birth if paternity was established by a voluntary declaration of paternity." She's now 10yrs old. Which brings me back to the statue of limitations question. How can he now, 10yrs later establish parentage only because he filed for divorce?

But on the flip side, it doesn't work both ways. The law states a child born durning the marriage is presumed the to be the husbands, yet HE had another child but I'm not presumed to be the mother. Now, you would say obviously that isn't possible being you didn't give birth to that child. But with the same valid point, obviously he didn't contribute his sperm.

On the face of it, this seems discriminatory. But you can't argue with biology here. When a woman gives birth there is no presumption of paternity, paternity is a biological fact. On the other hand, there also has to be a father. To make the process of assigning paternity easier the husband is presumed to be the father since in the vast majority of cases he will be.

But, again, there is a mechanism for challenges. And again, if you lost that window of opportunity for challenge that's not the law's fault.

On the face of it, this seems discriminatory. But you can't argue with biology here. When a woman gives birth there is no presumption of paternity, paternity is a biological fact. On the other hand, there also has to be a father. To make the process of assigning paternity easier the husband is presumed to be the father since in the vast majority of cases he will be.

But, again, there is a mechanism for challenges. And again, if you lost that window of opportunity for challenge that's not the law's fault.

Lost the window of opportunity? You mean the one that they disregarded being that my daughter is TEN? Plain and simple the law is discriminatory. I'm not disagreeing with biology - but it seems that the law picks and chooses biology in regards to paternity. In the vast majority, this is true but what about the rights to biological parent?

Lost the window of opportunity? You mean the one that they disregarded being that my daughter is TEN? Plain and simple the law is discriminatory. I'm not disagreeing with biology - but it seems that the law picks and chooses biology in regards to paternity. In the vast majority, this is true but what about the rights to biological parent?

No the law is dealing with Biology not picking and choosing.

As to the rights of the bio parent, they have to exercise those rights in a timely basis. But those rights are there.

According to the law, they have NO rights.

Actually, the law REALLY protects the rights of biological parents.

If the biological father didn't step up and challenge the paternity in the first 2 years, that's HIS fault, not the law's fault.

HE HAD TWO YEARS TO CHALLENGE!

That's a HELL of a lot longer than birthparents get to challenge an adoption, ma'am.

If he didn't exercise his rights in TWO YEARS, then that's YOUR problem and HIS problem, but not the problem of the law.

Actually, the law REALLY protects the rights of biological parents.

If the biological father didn't step up and challenge the paternity in the first 2 years, that's HIS fault, not the law's fault.

HE HAD TWO YEARS TO CHALLENGE!!

That's a HELL of a lot longer than birthparents get to challenge an adoption, ma'am.

If he didn't exercise his rights in TWO YEARS, then that's YOUR problem and HIS problem, but not the problem of the law.

Whooooa hold on tiger. There was nothing to challenge. Each knew who the father was. Neither was paying child support. I filed for support against bio in 2006 and it was dismissed lack of prosection. When he was released, he had visits and he sent me cash when he could. Ex-husband filed for divorce, and all of a sudden wants visitation/parentage. It is the problem of the law, the law is granting my ex parentage just because we were married, and didn't factor in that we were separated NOR cohabiting. Yet he has another kid, and no problems there. That kid has has a bio mom/dad with no one else to question it - even though HE was married to another woman.

I'm not a legal expert, and I do sympathize, but I have to state this. You keep saying "she's ten years old!".

Yes, she is. You've had 10 years to set this straight. The only reason you're mad about it now is that push has come to shove, but you seemed to be fine with it for the last 10 years.

Like everyone else has stated, it's not the laws fault, it's the people involved. This is 10 years overdue, but even then, you had 2 years to settle it, which you didn't do. You're only doing it now because you're pushed into a corner.

You can't always blame the law. Sometimes you have to accept your part of the blame.

You also don't seem to understand why the husband is presumed to be the parent of children born to his wife.

Most people don't cheat, or have relationships outside their marriage. If every child born was scrutinized as the product of an affair, boy oh boy. Marriage is a legal institution, and the law presumes that children born to a married couple are biologically the husbands children.

Of course the child he had with another woman isn't presumed to be yours, even though you were married. There's a huge difference between men and women. Women can easily prove paternity. They carry the child! It's very obvious that the child belongs to them biologically. It's not so easy for the man.

I'm not a legal expert, and I do sympathize, but I have to state this. You keep saying "she's ten years old!".

Yes, she is. You've had 10 years to set this straight. The only reason you're mad about it now is that push has come to shove, but you seemed to be fine with it for the last 10 years.

Like everyone else has stated, it's not the laws fault, it's the people involved. This is 10 years overdue, but even then, you had 2 years to settle it, which you didn't do. You're only doing it now because you're pushed into a corner.

You can't always blame the law. Sometimes you have to accept your part of the blame.

There was nothing to set straight. She has always been in my custody and I am the sole provider. Im the only one on her birth certificate. And why do you presume he just now did it? I'll give you one clue - my ex-husband did it because he hates her bio. He doesn't want her, he wants revenge and this stupid law worked in his favor. If he really wanted parentage, he would have did it in the first place.

So basically because you all seem to agree with the law - you 1) agree that he shouldn't have to pay child support, 2) should have her name changed, 3) have her non-bio dad added to her birth certificate? Right. Over my dead body.

So basically because you all seem to agree with the law - you 1) agree that he shouldn't have to pay child support, 2) should have her name changed, 3) have her non-bio dad added to her birth certificate? Right. Over my dead body.

The law is what will rule, if you attempt to not follow a legal court order, you can be held in contempt of court. And not over your dead body but over your body in jail if you refuse. You will appear in court and you will have a chance to contest things, but when the judge rules, that is what and how it is.

Each area has their own laws, and while it seems wrong morally, laws are not moral, they are laws,

I do agree with the law, but you don't seem to see that the law could have worked in your favor 10 years, even 9 years, even 8 years ago. You're fighting against something that was always in place. Something you could have accessed, but didn't.

Your ex husband may be doing this out of malice, but you don't seem to see your part in all of this, and the bio dads part too. She's 10! This could have been resolved, but you seemed to be happy with the way things were, until this happened. Now it's too late. That doesn't mean that the law is to blame. If it was that important to you, why wasn't it dealt with 10 years ago?

The bio dad should be paying child support, but since he didn't challenge paternity, and you didn't list him as the father, that's not likely to happen, because you both waited too long.

I don't think that your ex husband should be responsible for child support, because he isn't the bio dad. I also don't think that he should be added as the father to her birth certificate, nor do I think she should have to change her name. But again, had this been dealt with when she was born (and you both knew then what you know now about her paternity), then it wouldn't be an issue. Right now you have to deal with the way things are, not what could have been, and sadly, you waited too long.

I understand your anger, I really do. I just don't understand why you thought you could go against the law and still win.

You also don't seem to understand why the husband is presumed to be the parent of children born to his wife.

Most people don't cheat, or have relationships outside their marriage. If every child born was scrutinized as the product of an affair, boy oh boy. Marriage is a legal institution, and the law presumes that children born to a married couple are biologically the husbands children.

Of course the child he had with another woman isn't presumed to be yours, even though you were married. There's a huge difference between men and women. Women can easily prove paternity. They carry the child! It's very obvious that the child belongs to them biologically. It's not so easy for the man.

Most people don't wait 7yrs to finally file for divorce either. Again, we were separated, living in different houses and we were both in another relationship so there was no cheating. We dissolved our marriage. So, clearly my daughter isn't his - just like his child isn't mine.

I do agree with the law, but you don't seem to see that the law could have worked in your favor 10 years, even 9 years, even 8 years ago. You're fighting against something that was always in place. Something you could have accessed, but didn't.

Your ex husband may be doing this out of malice, but you don't seem to see your part in all of this, and the bio dads part too. She's 10! This could have been resolved, but you seemed to be happy with the way things were, until this happened. Now it's too late. That doesn't mean that the law is to blame. If it was that important to you, why wasn't it dealt with 10 years ago?

The bio dad should be paying child support, but since he didn't challenge paternity, and you didn't list him as the father, that's not likely to happen, because you both waited too long.

The law I don't think that your ex husband should be responsible for child support, because he isn't the bio dad. I also don't think that he should be added as the father to her birth certificate, nor do I think she should have to change her name. But again, had this been dealt with when she was born (and you both knew then what you know now about her paternity), then it wouldn't be an issue. Right now you have to deal with the way things are, not what could have been, and sadly, you waited too long.

I understand your anger, I really do. I just don't understand why you thought you could go against the law and still win.
Something that was in place, yes. Just like I would be fine if that were still the case. Now, my daughter has to go with my ex-husband whom has been out of my life for 7 yrs only because she was born while we were married. Again, I did file for support with bio dad in 2006. Case dismissed. Lack of prosecution. Plain and simple, a child has ONE father and ONE mother. Why would you think it's okay that he not pay child support but yet get visitation? You think its okay for a man claim parentage but not help support the child?

First, you don't seem to have told us the whole story initially. Now you are throwing in details to help your case look better. But they only help it from an emotional standpoint, not a legal one. If you can show me a law that works perfectly in EVERY instance, it will be the first one I've seen. That doesn't mean a law is unfair, badly crafted or onerous. It simply means that on rare occasions the circumstances may not fit the intent of the law.

No one said he shouldn't pay support. If he is the legal father, then he is and should be responsible for support. He had an opportunity to challenge his paternity and didn't. So he has both rights and responsibilities. He has the right to visitation and the responsibility to support. But the law treats the two separately. So you need to file for support. Just because the court is allowing him visitation doesn't mean they will order support. And no, he shouldn't be able to change her name. Again, he had ample opportunity to do that and didn't. I think a court will look at that. However, as the legal father, he can request that he be listed on the birth certificate. I'm not sure how a court will deal with that.

Your original question was about the legal father filing for parentage/visitation. As the legal parent that will likely be granted. The other things you just recently added and can be answered differently.

But the bottom line here is you need to get an attorney to represent you. There are nuances in most laws and an attorney will know what they are and how to work the system.

But I can tell you that your "over my dead body" attitude will NOT sit well with the courts. Another reason you need an attorney, to tell you haw to behave in court. Challenging the law as sick and twisted won't cut it. That's part of why we are reacting the way we are, because if you take that attitude into court it will not help you.

Your strategy should be to try and prove that he is using the law to get revenge, not because he cares for your daughter. That may be hard to prove.

First, you don't seem to have told us the whole story. Now you are throwing in details to help your case look better. But they only help it from an emotional standpoint, not a legal one. If you can show me a law that works perfectly in EVERY instance, it will be the first one I've seen. That doesn't mean a law is unfair, badly crafted or onerous. It simply means that on rare occasions the circumstances may not fit the intent of the law.

No one said he shouldn't pay support. If he is the legal father, then he is and should be responsible for support. He had an opportunity to challenge his paternity and didn't. So he has both rights and responsibilities. He has the right to visitation and the responsibility to support. And no, he shouldn't be able to change her name. Again, he had ample opportunity to do that and didn't. I think a court will look at that. However, as the legal father, he can request that he be listed on the birth certificate. I'm not sure how a court will deal with that.

Your original question was about the legal father filing for parentage/visitation. As the legal parent that will likely be granted. The other things you just recently added and can be answered differently.

But the bottom line here is you need to get an attorney to represent you. there are nuances in most laws and an attorney will know what they are and how to work the system.

But I can tell you that your "over my dead body" attitude will NOT sit well with the courts. Another reason you need an attorney, to tell you haw to behave in court. Challenging the law as sick and twisted won't cut it. That's part of why we are reacting the way we are, because if you take that attitude into court it will not help you.

Your strategy should be to try and prove that he is using the law to get revenge, not because he cares for your daughter. That may be hard to prove.

First of all, my question was asking "how to remove visitation/parentage from my ex-husband" and clearly you didn't read it. I did give all the facts, I stated she was born durning our marriage, however we were in separate relationships. As per Family Code 7540 " the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." I guess the judge missed that part. Ironically, he wasn't interested in claiming my son whom was also a "child of the marriage", because as I stated earlier, he's not interested in her - it's geared toward her bio. The over my dead body attitude comes from my parental instinct. Thus, this is not your child, it is merely a question and your life goes on. I have the right to challenge the law and trust me, I will.

When were the divorce papers filed in this case? What year?

First of all, my question was asking "how to remove visitation/parentage from my ex-husband" and clearly you didn't read it. I did give all the facts, I stated she was born durning our marriage, however we were in separate relationships. As per Family Code 7540 " the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." I guess the judge missed that part. Ironically, he wasn't interested in claiming my son whom was also a "child of the marriage", because as I stated earlier, he's not interested in her - it's geared toward her bio. The over my dead body attitude comes from my parental instinct. Thus, this is not your child, it is merely a question and your life goes on. I have the right to challenge the law and trust me, I will.

Look this is getting us nowhere. You came here for advice about the law. You got that advice and more. If you are going to argue with those people trying to help you at every turn, then there is no point in continuing this.

Did you raise these arguments at the hearing? I suspect not. And you blame this on the judge. I suspect you went into that hearing without a lawyer and you lost because of it. So do the smart thing now and get yourself a lawyer.

We can advise what we know of the law. We can advise how that applies to what you tell us of your situation. We volunteer our time here to help people who need our knowledge and expertise. We don't need to waste that time arguing with someone who doesn't appreciate the efforts we are going through. If you want our help then work with us. Otherwise I'm just going to close this thread.

So basically because you all seem to agree with the law - you 1) agree that he shouldn't have to pay child support, 2) should have her name changed, 3) have her non-bio dad added to her birth certificate? Right. Over my dead body.


It isn't about agreeing with the law. That discussion belongs on some discussion or pet peeve board, not in the legal forum.

The law is what it is. You want it to be something else, try to get it changed.

You aren't the first person - nor will you be the last - I've heard say "over my dead body" as the Judge's gavel ruled against him/her.

Scott - I'd close it. I see very little of a legal nature here and a lot of discussion about the inequities in life (in general).

When were the divorce papers filed in this case? What year?

December 2010 - He filed 4 amended petitions. The hearing in regards to visitation with my daughter was on the same day I was in Jury Duty. I called the court and told the clerk but the judge granted his motion anyway.

December 2010 - He filed 4 amended petitions. The hearing in regards to visitation with my daughter was on the same day I was in Jury Duty. I called the court and told the clerk but the judge granted his motion anyway.


Yikes! When the law doesn't work - it sure doesn't work!

Amazing and embarrassing for anyone involved in any way with the legal process.

I'd be... unhappy.

Yikes! When the law doesn't work - it sure doesn't work!

Amazing and embarrassing for anyone involved in any way with the legal process.

I'd be ... unhappy.

Then the judge retired. Got a new judge but of course his "hands are tied" and he cannot remove the order. I wish I would have just skipped Jury Duty and risked the warrant.

Let me see, risk custody or something about my child ? And being in court is a excuse to miss jury duty. You if you had to go to jury duty, file or have filed before the court time a motion for a new hearing,

And of course a new judges hands are not tied, you file for a new hearing based on new facts or evidence.

Then the judge retired. Got a new judge but of course his "hands are tied" and he cannot remove the order. I wish I would have just skipped Jury Duty and risked the warrant.

Why "of course his hands are tied"? I asked a while back about you having an attorney. You didn't answer so I suspect your didn't. An attorney wouldn't accept the hands are tied business. An attorney would have requested a postponement while you reported to jury duty. The jury duty clerk should have let you out or had the judge postpone.

Yes the courts when wrong, but it didn't have to happen if you had representation or even asked the right questions.

Let me see, risk custody or something about my child ? and being in court is a excuse to miss jury duty. You if you had to go to jury duty, file or have filed before the court time a motion for a new hearing,

And of course a new judges hands are not tied, you file for a new hearing based on new facts or evidence.

Wow. Why didn't I think of that? I was on call and I didn't know if I was to report or not until after 5pm the day before, so clearly that wasn't an option.

Wow. Why didn't I think of that? I was on call and I didn't know if I was to report or not until after 5pm the day before, so clearly that wasn't an option.

That makes absolutely no sense. First, as soon as you received the On call summons, you should have gone to the clerk of the court and told them you were on call and may have to report the day of your hearing.

Also, since you wouldn't know you had to appear until after court was closed on the day before, then when you showed up at the courthouse, you go immediately to the head of jurors and explain the situation and ask for a postponement of either your jury service or the hearing.

So you had options. Maybe you didn't understand what your options were (another place having an attorney would have helped). But that doesn't mean the options weren't there.

It does make sense. He served me with the court paperwork via US mail like 2 days before we had to go to court. But the proof of service he had his girlfriend sign was obviously back dated. I spent the entire morning sitting in a room waiting to be called. I told the woman at the window my situation when I checked in but they don't really care about your story. By the time I got to the judge it was 2pm in which it was too late.

So there is your grounds for vacating the judgment, proof of service. And frankly, I find it hard to believe that they wouldn't give you a postponement to attend a hearing, especially if you hadn't asked for a postponement before. I suspect based on the attitude you are displaying here, that you showed some 'tude to the clerk which might explain why they didn't want to accommodate you.

Scott, you don't know me so I would appreciate if you would stop assuming things. I posted a question and all you keep doing is judging me. I now have attitude because I did in fact try every option I had and still the system failed me. The clerks at the window do not issue postponements in California. All they do is check you in, call your name and tell you to talk to the judge. I did show the judge the proof of service. Like I said before, the new judge said his hands were tied. You are not offering any valid information based on my question, so no need to reply any further being you're probably not familiar with the laws of the state I live in. Thank you.

Scott, you don't know me so I would appreciate if you would stop assuming things. I posted a question and all you keep doing is judging me. I now have attitude because I did in fact try every option I had and still the system failed me. The clerks at the window do not issue postponements in California. All they do is check you in, call your name and tell you to talk to the judge. I did show the judge the proof of service. Like I said before, the new judge said his hands were tied. You are not offering any valid information based on my question, so no need to reply any further being you're probably not familiar with the laws of the state I live in. Thank you.


First, it's a public site. If you want people to agree with you, talk to your friends. Scott is a well respected member of AMHD, obviously knows the laws of your State better than you do. Please don't attempt to dictate who will and who won't answer your question.

Oh, and we do know you - we know you from your attitude toward us at AMHD (and we're not the enemy) and from what you've posted. You appear to enjoy being a victim.

You seem to think you know it all, so I don't know why you're even posting. Your question has been answered - and answered - and answered. The questions we've asked in order to get info in order to help you have NOT been answered.

So take your attitude, go back to Court and let us know how it plays out.

I think this thread is over.

Scott, you don't know me so I would appreciate if you would stop assuming things. I posted a question and all you keep doing is judging me. I now have attitude because I did in fact try every option I had and still the system failed me. The clerks at the window do not issue postponements in California. All they do is check you in, call your name and tell you to talk to the judge. I did show the judge the proof of service. Like I said before, the new judge said his hands were tied. You are not offering any valid information based on my question, so no need to reply any further being you're probably not familiar with the laws of the state I live in. Thank you.

First, I specifically said "based on the attitude you are displaying here". The above is more of the same attitude. Second, judging comes with the territory. We have to take what you post, weight that against our knowledge of the law and procedures and make some judgments to be able to give advice. I didn't say to talk to the clerk I said to talked to the head of jurors. Again, you are reading what you want to read, not what was actually said.

You have been offered valid info, but you don't seem to want to pay attention. I warned you before about being argumentative when people were trying to help you. And as you have been told, you don't dictate who can answer or how. If you feel a response has violated our rules report it. If you don't like the advice, ignore it. Therefore I'm closing this thread.