Ask Me Help Desk - Confused father to be

My ex fiancé is pregnant. We were engaged briefly and broke several weeks ago. We are not getting along and she has since taken a new man. I have to leave the state of Kentuck y for a few months, but will be back long before the due date in July. I fear I will be pushed completely out of my child's life if she marries before the birth. I want to establish paternity. Should I consult a lawyer? And if so, when? Is there any way way I can enforce my rights after paternity has been established? If she leaves before the birth is there anything that I can do?

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Originally Posted by ArlesVG2030

My ex fiance is pregnant. We were engaged briefly and broke several weeks ago. We are not getting along and she has since taken a new man. I have to leave the state of Kentuck y for a few months, but will be back long before the due date in July. I fear I will be pushed completly out of my childs life if she marries before the birth. I want to establish paternity. Should I consult a lawyer? And if so, when? Is there any way way I can enforce my rights after paternity has been established? If she leaves before the birth is there anything that I can do?

When the child is born you petition for visitation, custody if you can make an argument that the mother is unfit - the Court will request paternity testing of you and the child. You pretty much can do nothing until that time. Keep in mind that the paternity testing must be Court ordered to be admissible - no "outside the Court, home DNA" tests.

If the new boyfriend's name is placed on the birth certificate you will change that when you prove paternity.

She will undoubtedly counter with a request for child support.

I see no reason to consult with an Attorney at this time other than your own peace of mind.

Quote:

Originally Posted by ArlesVG2030

My ex fiance is pregnant. We were engaged briefly and broke several weeks ago. We are not getting along and she has since taken a new man. I have to leave the state of Kentuck y for a few months, but will be back long before the due date in July. I fear I will be pushed completly out of my childs life if she marries before the birth. I want to establish paternity. Should I consult a lawyer? And if so, when? Is there any way way I can enforce my rights after paternity has been established? If she leaves before the birth is there anything that I can do?

Yours is kind of a interesting case and reminds me of a case in California with similar facts that went on appeal a few years ago.

In the case I am thinking of a fiancée broke up with his pregnant girlfriend before the couple's baby was born; she married someone else before the baby's birth and after the birth the bio-dad (the former fiancee) petitioned for but was denied the right to establish paternity and have custody and visitation with the child. The reason was that the mom's husband (who everyone agreed was not the biological father) was the only legal father the child had under the state's (California's) statutory scheme. In other words, the husband had a presumption legally of paternity because he was married to the mom when the child was born but the bio-dad had none. The rule was (and is) that a person without a presumption of paternity cannot challenge another person who has such a presumption. In other words, to challenge a presumption of paternity you have to have one yourself. So the trial judge threw the case out.

Now, fortunately the bio-dad in this story had the money to appeal the case and the court of appeal reversed the trial judge and allowed the bio-dad the right to establish his claim to being the "legal" father. The rule in that case is that it is unconstitutional to deny a father, under these unique facts, the right to establish paternity. But this guy had to go through the time and expense of an appeal for justice to be done and lost at the trial level. Now the statutory scheme in your state might be different than that of California so none of this may be a problem for you but I don't know. And I doubt you know either. Thus, I think you would be ill-advised to assume you are out of the woods in your jurisdiction. At a minimum have a consultation with a local attorney experienced in family law and get an opinion. In many states (California for example) you do not need to wait until the birth of a child to file an action to establish paternity or to seek custody and support (we have cases where once the child is born custody and support orders are in place already).

So again, play it safe and check into this carefully.

I would consult an attorney now to get your strategy in place. It may be necessary to prepare and serve an injunction on the hospital as soon as the mother is admitted to make sure no father is placed on the birth certificate until paternity can be established.

Yes once a baby is born then you need to file for paternity. IF you file within a short time there shoulld be no problem

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Originally Posted by cadillac59

In the case I am thinking of a fiancee broke up with his pregnant girlfriend before the couple's baby was born; she married someone else before the baby's birth and after the birth the bio-dad (the former fiancee) petitioned for but was denied the right to establish paternity and have custody and visitation with the child. The reason was that the mom's husband (who everyone agreed was not the biological father) was the only legal father the child had under the state's (California's) statutory scheme. In other words, the husband had a presumption legally of paternity because he was married to the mom when the child was born but the bio-dad had none. The rule was (and is) that a person without a presumption of paternity cannot challenge another person who has such a presumption. In other words, to challenge a presumption of paternity you have to have one yourself. So the trial judge threw the case out.

What was the time frame between the birth and the filing to establish paternity?

As far as I know NY - and I don't know about other States - will not allow a filing BEFORE the birth of the child. No problem lining up an Attorney but you cannot file in anticipation of the birth.

If there is law to the contrary, please correct me - and, again, all States are different.

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Originally Posted by JudyKayTee

What was the time frame between the birth and the filing to establish paternity?

As far as I know NY - and I don't know about other States - will not allow a filing BEFORE the birth of the child. No problem lining up an Attorney but you cannot file in anticipation of the birth.

If there is law to the contrary, please correct me - and, again, all States are different.

In that particular case (Michael M. v. Giovanna F. (1992) 5 Cal. App. 4th 1272) the paternity action was filed after the birth of the child. But I have seen cases in which paternity actions were filed before a child's birth with requests for child custody and support. In fact the forms we use even have a box to check off for an order to share prenatal expenses. Naturally custody orders have no practical application until the birth of the child and pre-birth support relates to pregnancy-related expenses (unreimbursed medical is one that comes to mind). But there isn't really any reason you should have to wait until after a child's birth to have custody or support orders.

So yes, in California you can definitely file a paternity case for an unborn child. But I wouldn't be a bit surprised if this were not possible in other states because being able to establish paternity of the unborn seems counterintuitive. I was a little surpised by this myself a few years ago when I learned you could do this in California but the more you think about it the more sense it makes.