[spershing]

I understand that I'm going to get some very nasty responses but I'm looking for someone who has been in this situation and can give me advice. I have a soon to be 4 yr old son. I'm in a 10 yr marriage and about 4 yrs ago my husband and I both stepped out together with different people. I ended up pregnant. My husband and I are still together but he did not want to be on the birth certificate but has been the only father and a fabulous one for my son. The person I stepped out with was younger and was a lot different then he is now. The biological father found out about his son through a mutual acquaintance 10 months ago and since has demanded to see his son and trying to break up my marriage. Since- the biological father has moved in with his mother, does not work, can't keep a job and deciede to make his body one complete tattoo yes even on his face. He has horrible veiws and in my opinion and many other's is not a productive member of society. His mother is a wonderfu person but basically takes care of him at the age of 30 and most of the time I have to go through her because he can't seem to even hold a conversation with me. I have documented all the times I have let him see his son but I just can't do it anymore. I need this person out of our lives. I have come to understand that he is this way because he is on medicine for Bi-polor and can't take care of himself. Yet he wants to have a say in his son's life and even thinks my son should have a tattoo on his face when he is older. I LOTH THIS PERSON, and the example he is setting for my son. Through DNA testing it has been proven that he is the father but he is not on the birth certificate. My husband and I don't have money for courts but I know that my sons father has his mother pay for an attorney they already have if necessary . What can my husband and I do to get this person out of our lives.

[JudyKayTee]

I understand that I'm going to get some very nasty responses but I'm looking for someone who has been in this situation and can give me advice. I have a soon to be 4 yr old son. I'm in a 10 yr marriage and about 4 yrs ago my husband and I both stepped out together with different people. I ended up pregnant. My husband and I are still together but he did not want to be on the birth certificate but has been the only father and a fabulous one for my son. The person I stepped out with was younger and was alot different then he is now. The biological father found out about his son through a mutual acquaintance 10 months ago and since has demanded to see his son and trying to break up my marriage. Since- the biological father has moved in with his mother, does not work, can't keep a job and deciede to make his body one complete tattoo yes even on his face. He has horrible veiws and in my opinion and many other's is not a productive member of society. His mother is a wonderfu person but basically takes care of him at the age of 30 and most of the time I have to go through her because he can't seem to even hold a conversation with me. I have documented all the times I have let him see his son but I just can't do it anymore. I need this person out of our lives. I have come to understand that he is this way because he is on medicine for Bi-polor and can't take care of himself. Yet he wants to have a say in his son's life and even thinks my son should have a tattoo on his face when he is older. I LOTH THIS PERSON, and the example he is setting for my son. Through DNA testing it has been proven that he is the father but he is not on the birth certificate. My husband and I don't have money for courts but I know that my sons father has his mother pay for an attorney they already have if necessary . What can my husband and I do to get this person out of our lives.

You can't get the biological father of your child out of your lives or the life of his child UNLESS you go to Court, file a Petition and prove his life style and medical problems present a danger to the child. You will need proof. While you're there, ask for support if you're not getting any or an enforcement if a previous support order if there is one.

You say your husband didn't want to be on the BC. If the father agrees to an adoption would your husband be willing to adopt the child?

Whether he's on the BC does not matter if he's been proven to be the father through DNA.

You don't even need an Attorney to file in the local branch of your Court that handles these matters.

I would ignore his plans for your son's future - by that time your son can make up his own mind.

Did the father have medical problems, all these other issues, during your affair or are these recent concerns?

[spershing]

You can't get the biological father of your child out of your lives or the life of his child UNLESS you go to Court, file a Petition and prove his life style and medical problems present a danger to the child. You will need proof. While you're there, ask for support if you're not getting any or an enforcement if a previous support order if there is one.

You say your husband didn't want to be on the BC. If the father agrees to an adoption would your husband be willing to adopt the child?

Whether or not he's on the BC does not matter if he's been proven to be the father through DNA.

You don't even need an Attorney to file in the local branch of your Court that handles these matters.

I would ignore his plans for your son's future - by that time your son can make up his own mind.

Did the father have medical problems, all these other issues, during your affair or are these recent concerns?

Thank you for your advice.
He was much different when I was having an affair with him he has always been this way but he is worse now. So- no these concerns have always been but are even more now because he is just not right mentally. I will do as you suggested but I'm scared. I don't to lose my son to him.

[ScottGem]

Who IS on the birth certificatre as father? Has the bio father gone to court to enforce his rights? Under what circumstances was the DNA test done? What area do you live in?

As you can see you left out a lot of pertinent info here. Its possible, depending on where you live that your husband may have become, by default the legal father. In that case, the bio father has no rights.

As Judy pointed out, the only way to get the bio father out of your life is to go to court. What strategy you take in court depends on the amswers to the questions I asked. But if you go into a court without an attorney against the other party who has an attorney, the likelihood is you will lose.

[JudyKayTee]

Thank you for your advice.
He was much different when I was having an affair with him he has always been this way but he is worse now. So- no these concerns have always been but are even more now because he is just not right mentally. I will do as you suggested but I'm scared. I don't to lose my son to him.

I wouldn't be afraid - you won't lose custody unless you're unfit and from what you have explained, you are not.

Will he get Court ordered visitation? Probably, but you can ask that it be supervised by a third party.

Will that work for you?

[spershing]

Who IS on the birth certificatre as father? Has the bio father gone to court to enforce his rights? Under what circumstances was the DNA test done? What area do you live in?

As you can see you left out a lot of pertinent info here. Its possible, depending on where you live that your husband may have become, by default the legal father. In that case, the bio father has no rights.

As Judy pointed out, the only way to get the bio father out of your life is to go to court. What strategy you take in court depends on the amswers to the questions I asked. But if you go into a court without an attorney against the other party who has an attorney, the likelihood is you will lose.

We live in the state of Oregon.
No one is on the BC right now
The Bio father has not gone to court but has an attorney available to him.
The DNA test was done at DNA services of America and will hold up in court and this was performed under his BF wish.
I really can't afford an attorney there has to be a different way.

[spershing]

I wouldn't be afraid - you won't lose custody unless you're unfit and from what you have explained, you are not.

Will he get Court ordered visitation? Probably, but you can ask that it be supervised by a third party.

Will that work for you?

Yes but how much visitation are we talking. I think he is such a bad influence on my son

[JudyKayTee]

Yes but how much visitation are we talking. I think he is such a bad influence on my son

Okay, you gather your evidence, take it to Court - Court interviews and evaluates and makes that determination. No way to know in advance how much visitation he will get.

[spershing]

Okay, you gather your evidence, take it to Court - Court interviews and evaluates and makes that determination. No way to know in advance how much visitation he will get.

I will look into what you said.
Thank you very much for your help

[ScottGem]

First, frankly I don't think you can afford NOT to have an attorney if the bio father has one. Not if you want him out of your lives.

As Judy noted there is no predicting what a judge will do as far as visitation is concerned. But I do have good news for you. You need to get VERY familiar with ORS 109.070-072. The way I read those statutes, if you are your husband were legally married at the time of conception then he is considered the legal father. I'm less clear on this, but I think a challenge to legal paternity needs to be mounted within 2 years. Since your child is 4, I think the bio father's window of opportunity has past and I believe a judge will rule that your husband is the legal father and the bio father has no rights.

But I'm not an attorney so I can't guarantee that's the way things will go.

You also need to prepare all the evidence you can on the bio father's unfitness as a back up. If the judge rules for him, then you can probably force supervised visitation at least initially.

But I really think you should start with by invoking 109.070 and claiming that your husband is the legal father and the its past the time to challenge that.

Good luck and keep us posted.

[GV70]

Ok-you are in Oregon...
109.070. (1) The paternity of a person may be established as
Follows:
(a) The child of a wife cohabiting with her husband who
Was not impotent or sterile at the time of the conception of the
Child is conclusively presumed to be the child of her husband,
Whether the marriage of the husband and wife may be
Void.
(b) A child born in wedlock, there being no judgment of
separation from bed or board, is presumed to be the child of the mother's husband, whether the marriage of the husband and wife may be void. This is a disputable presumption.


(2) The paternity of a child established under subsection
(1)(a) or (c) of this section may be challenged in an action or
Proceeding by the husband or wife. The paternity may not be
challenged by a person other than the husband or wife as long as the husband and wife are married and cohabiting, unless the
husband and wife consent to the challenge.


I am interested in how you did not list father's name on your child's BC when you were married then.

[GV70]

W
The DNA test was done at DNA services of America and will hold up in court and this was performed under his BF wish.

Only court ordered tests are allowed to be present as an evidence.

[ScottGem]

Only court ordered tests are allowed to be present as an evidence.

I was thinking along the same lines, that's why I asked how it came to have been done. But given that it would seem that 109.070-072 doesn't allow the bio-father to bring an action, the DNA test would be moot.

[GV70]

Scott,
I can see some obscure moments:
1.The OP is willing to co-operate with her ex lover and biofather of the child/

he biological father found out about his son through a mutual acquaintance 10 months ago and since has demanded to see his son and trying to break up my marriage...The DNA test was done at DNA services of America and will hold up in court and this was performed under his BF wish.

2. The husband is not willing to take legal responsibilities
3.It can be viewed that the family acknoledge that her ex-lover is the real father.
According to this the Court may grant custody rights to the biofather notwithstanding 109.070

[JudyKayTee]

First, frankly I don't think you can afford NOT to have an attorney if the bio father has one. Not if you want him out of your lives.

As Judy noted there is no predicting what a judge will do as far as visitation is concerned. But I do have good news for you. You need to get VERY familiar with ORS 109.070-072. The way I read those statutes, if you are your husband were legally married at the time of conception then he is considered the legal father. I'm less clear on this, but I think a challenge to legal paternity needs to be mounted within 2 years. Since your child is 4, I think the bio father's window of opportunity has past and I believe a judge will rule that your husband is the legal father and the bio father has no rights.

But I'm not an attorney so I can't guarantee that's the way things will go.

You also need to prepare all the evidence you can on the bio father's unfitness as a back up. If the judge rules for him, then you can probably force supervised visitation at least initially.

But I really think you should start off with by invoking 109.070 and claiming that your husband is the legal father and the its past the time to challenge that.

Good luck and keep us posted.

Excellent research - but I think you may have missed what I know I missed the first time around: "Through DNA testing it has been proven that he is the father but he is not on the birth certificate." I wonder if that changes things? He's legally recognized but not on the BC.

I don't know the who/what/why of the DNA testing but apparently there's been some action taken in the past.

Off to read 109.070 - !

[GV70]

[QUOTE=JudyKayTee;1428702 "Through DNA testing it has been proven that he is the father but he is not on the birth certificate." I wonder if that changes things? He's legally recognized but not on the BC.[/QUOTE]
Having DNA testing done does not mean legal recognizing yet.

[ScottGem]

but I think you may have missed ... I don't know the who/what/why of the DNA testing but apparently there's been some action taken in the past.

That's why I asked the question. Anyone can go to a lab and have a DNA test done. But generally that won't be recognized by a court unless the court orders it. That's why I wanted to know if the test was done privately or through actions of a court. Since the test was done privately, the bio-father would need to get past 109.070 somehow to file for a change in legal paternity.

I agree with GV70 that there is some muddying of the waters here and that's why I think its imperative that she consult an attorney. But I'm wondering if one of the reasons, the bio-father has not filed as yet is that his attorney is telling him that he hasn't a leg to stand on because of 109.070.

BTW, I asked GV70 and a couple of our other Family Law mavens to look at this and give us their take. So thanks guys for helping out.

[GV70]

109.124
(2) “Child born out of wedlock” means a child born to an unmarried woman or to a married woman by a man other than her husband.

109.125 Who may initiate proceedings; petition; parties.
(d) A man claiming to be the father of a child born out of wedlock... 2) Proceedings shall be initiated by the filing of a duly verified petition of the initiating party. The petition shall contain:

(a) If the initiating party is one of those specified in subsection (1)(a), (b), (c) or (e) of this section:

(A) The name of the mother of the child born out of wedlock or the woman pregnant with a child who may be born out of wedlock;

(B) The name of the mother’s husband if the child is alleged to be a child born to a married woman by a man other than her husband;

(C) Facts showing the petitioner’s status to initiate proceedings;

(D) A statement that a respondent is the father;

(E) The probable time or period during which conception took place; and

(F) A statement of the specific relief sought.

(7) If a man’s paternity of a child has been established under ORS 109.070 and the paternity has not been disestablished before proceedings are initiated under ORS 109.125, the court may not render a judgment under ORS 109.124 to 109.230 establishing another man’s paternity of the child unless the judgment also disestablishes the paternity established under ORS 109.070.

[GV70]

I've just made a phone call to my Oregon friend/she is a lawyer/. In her view ORS 109.070. Is not applicable to this case because no one was listed as a father on the BC.

[ScottGem]

OK so 109.125 gives the bio father the rights to contest, but is there any time frame by which he must file?