Ask Me Help Desk - No contact/support for 5 years

I have read at least 15 pages and have not seen our problem written about. I met my husband of 5 yrs, when him and his wife were going through a divorce. She was 4 months pregnant when they separated. Reason, she had cheated on him a couple of times. The child was born on December 15, 2003. She brought him to our house 3 times in the first 3 months. After that, nothing. He also has a 12 yr old girl with this woman. We get her every other weekend, spring break, normal visitation. He was ordered at the time divorce final (feb 04) to pay 160 per week in support. We have paid 80 per week for the daughter. My husband does not remember if he signed the birth certificate at the hospital or not, and I guess it is and was assumed he was the father since they were still married on paper. In the last 5 yrs, we pick up the daughter, the boy is in the car, she does not initiate any contact, nor do we. She does not take him to see the grandparents either. We have asked for a dna test and she refuses. I told my husband, she has done everything that I would do if I was not sure who my sons father was, if I had an affair and there was a chance it was his or someone else's. Couple months ago, we didn't have the full support ($80) and she blew a gasket. My thought is, if she blew a gasket over the support being $40 short, why don't she do something about 5 years worth of support for the boy? She has remarried and the child calls the new husband daddy. When my husband went to the hospital when the boy was born, he was called 10 hours afterwards, he didn't feel like he felt when he held his daughter. No bond, nothing. It would seem to me, if she went to court at this point or anytime after this point, the judge would ask, "why have you waited 5 yrs to try to collect when we see her every other weekend". She wants her new husband to adopt him and that's what we want. Do we have to go through a lawyer to do this? Can she just go to court and change the boys name to her husbands last name? Any input on this would be appreciated. I have talked to friends about what she does and says and they all say "that child is not his".
Thank you

Quote:

Originally Posted by dozerandbrat

I have read at least 15 pages and have not seen our problem written about. I met my husband of 5 yrs, when him and his wife were going thru a divorce. she was 4 months pregnant when they seperated. reason, she had cheated on him a couple of times. the child was born on December 15, 2003. She brought him to our house 3 times in the first 3 months. After that, nothing. He also has a 12 yr old girl with this woman. We get her every other weekend, spring break, normal visitation. He was ordered at the time divorce final (feb 04) to pay 160 per wk in support. We have paid 80 per wk for the daughter. My husband does not remember if he signed the birth certificate at the hospital or not, and i guess it is and was assumed he was the father since they were still married on paper. In the last 5 yrs, we pick up the daughter, the boy is in the car, she does not initiate any contact, nor do we. She does not take him to see the grandparents either. We have asked for a dna test and she refuses. I told my husband, she has done everything that i would do if i was not sure who my sons father was, if i had an affair and there was a chance it was his or someone elses. couple months ago, we didn't have the full support ($80) and she blew a gasket. my thought is, if she blew a gasket over the support being $40 short, why don't she do something about 5 years worth of support for the boy? She has remarried and the child calls the new husband daddy. When my husband went to the hospital when the boy was born, he was called 10 hours afterwards, he didn't feel like he felt when he held his daughter. no bond, nothing. it would seem to me, if she went to court at this point or anytime after this point, the judge would ask, "why have you waited 5 yrs to try to collect when we see her every other weekend". She wants her new husband to adopt him and thats what we want. Do we have to go thru a lawyer to do this? Can she just go to court and change the boys name to her husbands last name? any input on this would be appreciated. I have talked to friends about what she does and says and they all say "that child is not his".
Thank you

There are several things to be addressed. The time for DNA testing and proving if your husband is the father was at the first Court hearing, when child support was ordered.

You cannot change a Court Order, such as a support order, with a verbal agreement. He at this point is in arrears for, it appears, $40 a week for X number of weeks and CAN be held in contempt if the mother chooses to take him back to Court. If circumstances have changed and the amount should be lowered, he needs to go back to Court and get it reduced. Otherwise, the original amount stands.

If they were married he didn't need to sign the birth certificate to be acknowledged as the father.

Why didn't she do something about child support being $40 "short" over all this time? I have no idea what goes on inside her head. But, again, she CAN now take him back to Court for contempt and get that $40 a week times five years which he hasn't paid for all the weeks he didn't pay it. And he has no legal defense.

Changing a child's last name and adopting the child are two different things. If your husband no longer wants to be the legal father and wants someone else to be the legal father in all respects, then HE has to sign papers in a form approved by the Court. It's nothing to be attempted without an Attorney, particularly in view of the back child support. A name change does NOT change your husband's legal responsibility to support the child.

Whether he bonded with the child or any other child is not a legal issue nor is it a defense, likewise what other people think/do/say about who is the father.

As far as the Judge saying, "Why have you waited ..." or whatever, this is NOT a legal argument. Visitation and support are two different things.

You also should be aware - and you probably know - that you have no legal standing in any of this. It is your problem due to "overflow" but you have absolutely no legal say.

There is no place for personal advice and personal judgment on the legal thread so I will keep those feelings to myself.

Judy covered most of it. In most states, if a child is born to a married couple, then the husband is assumed to be the father unless a challenge is made. Your husband should have challeneged it immediately. You don't ask the mother for a paternity test, you ask the court to order one. It may, depending on your state laws, be too late to challenge his status as the legal parent, even if a paternity test shows he isn't.

However, this can all be made moot if her new husband wants to adopt the boy. SHE needs an attorney to draw up the adoption papers. As part of that the attorney will prepare a Relinquishment of rights for your husband to sign. He might have to show up in court to attest to his willingness to relinquish.

I would add to the Relinquishment that the mother foregos all claims for back support for the boy. Your husband had no right to pay less than the court ordered. She can go back at any time to enforce that order and he would have to pay about $5K in back support.

Yes this is a legal section, there is a court order, for a certain amount, anything less is not paying in full and the back payment is due.

As for as proving who the child belongs to that should have been determined shortly after the child was born.

As for as "she will not do a DNA test" who cares what she wants, that is what courts are for.

And to be honest, this boy may actuallly be his child, what if he is, how doe you make up all that pain to that child. I just can't believe the harm this poor child has went though