[Help_77]

Here's the situation: My husband cheated on me in early 2004. This past year he found out through a letter from the child support office that he may have fathered a child with the woman. He went in for paternity test & he is the father. The kid is 4 years old now. The reason child support came after him was because the mother was on welfare (medical and food stamps). The mother is married and the kid has her husband's last name. Her husband has raised the kid since birth. The kid calls him 'daddy' and only knows him as his father. The woman has no plans to tell the kid the truth any time soon and does not want my husband in the kid's life. She got off welfare and dropped the child support case - so an order was never put into place. My question is this - say in a few years when the kid is 7,8, 9, 10 - whatever - and she divorces her husband or othewise leaves him and decides she needs the money, what are the chances that they could make her husband - the stepfather and only father the kid knows - pay child support and not my husband? He's not a dirtbag - just made a drugged out mistake years ago that I have decided to forgive him for since he's turned his life around. Please don't preach about responsibility - that's not what I am here for. I just want to know LEGALLY if this could happen. I've read about laws of estoppel, in loco parentis, etc. Would any of this possibly apply if the stepdad raises this kid since birth? We're in Ohio, by the way... Thanks all!

[cadillac59]

The quick answer to your question is the chances are fairly good.

Some states provide for step-parent liability for support but you need to look a bit more closely at the issue if your state is one of those: sometimes there's only indirect liability for support, like a surety. In other words, if the custodial parent can't get the support from the bio-parent, then the step-parent can be held liable for the difference, or all of the support if nothing can be gotten from the bio-parent (if the person is say in prison, or totally a flake and drifts from from under-the-table job to another).

Other states take an estoppel view on step-parent liability (California does this). Only if the step-parent has taken on the day-to-day role of parent and the child has come to see the step-parent as the parent is liability imposed. In fact our rule is so strict that only if the step-parent has reprented to the child that he is the true parent intending the child to rely on that and only if the child believed that to be true is liability imposed--in other words the step-parent has to have interferred with the child's ability to know that someone else out there is the true parent. This is very difficult to prove but it sounds a bit like what has been going on in your husband's case.

My hunch is that your husband should plan on being liable for the support of the child through your state's child support age unless something unusual presents itself justifying passing off responsibility to the step-dad. But even in the estoppel-type states he might have a shot at it.

As a final matter you may need to consider one problem. In my opinion it is probably not possible to defend against a claim brought for payment of child support by pointing to a step-parent you think is also liable under an estoppel theory (I know of no specific case authority on that narrow point). In other words, just because the mom in this case might be able to go after the step-dad for support doesn't mean she has to, nor does it mean your husband would necessarily off the hook, i.e. have a defense if the mom only wanted to look to him for support! My feeling is that your husband would not be able to avoid a support obligation by relying himself on step-parent liability, which I get a sense is at the heart of your question. This is BIG issue to consider.

Check to see how Ohio approaches this.

[Help_77]

Thank you, Cadillac59, for your response. Who do you suggest I contact to find out about this in Ohio? A private attorney - or would there be someone better or more knowlegable that I could try? I am just trying to be prepared for the future. If you could imagine, I worry every day that her marriage will break up or she'll change her mind - she's a flaky individual - and she will come after my husband - even though she says she never will. It's hard living like this, but I am a worry wart and want to be prepared no matter what. Thank you again for your direct and unjudgmental response! :)

[MsMewiththat]

There is a paternity test that names him as the father. Cadillac59 is correct in stating that your husband should be prepared to pay child support until OH age of emmancipation which is 18. (Ohio Revised Code (section 3103.03) defines the age of emancipation as 18 years of age, or as long as the child attends high school on a full-time basis) You could take it upon yourselves to go to court and force visitation if you'd like to see anything any different.

[cadillac59]

I revised my answer by adding a few things so you might want to take a look at the last paragraph.

[cadillac59]

Thank you, Cadillac59, for your response. Who do you suggest I contact to find out about this in Ohio? A private attorney - or would there be someone better or more knowlegable that I could try? I am just trying to be prepared for the future. If you could imagine, I worry every day that her marriage will break up or she'll change her mind - she's a flaky individual - and she will come after my husband - even though she says she never will. It's hard living like this, but I am a worry wart and want to be prepared no matter what. Thank you again for your direct and unjudgmental response! :)

Your welcome. As a gay man, I'm one of the least judgmental people around (I've put up with enough judgmental people in my life).

I'd recommend consulting an Ohio family law attorney. If your state certifies specialties, consult one with a family law board certification.

[Help_77]

Again, I'm aware of the age of emancipation in Ohio. I am also aware of a parents obligation to support their children. I have a child with my husband as well. However, is there anything to be said of the fact that if we were to "Force visitation" as MsMewiththat stated, of the damage that may be done to this 4 year old kid? He doesn't know that his "dad" isn't really his dad. He has 2 sisters in the home with him... that family is all he knows.

How detrimental would it be to him to find out that he has a whole other family out there and that everything he knows is a lie? My husband has never even SEEN him because he had no idea he existed. The mother thought her husband was the dad all along until the kid got older and started to NOT look like her husband. Her husband decided to stay with her and raise his "son". Granted the kid may not get any of this at his young age, but say when he's a bit older this comes out? So much for "best interest of the child" right? Parents raise children -dollars don't. And right now this kid has 2 parents that love him and raise him as their son. Is there nothing to be said of that?

[MsMewiththat]

I didn't bring up the 18 year old comment to be rude but to remind you that you will be thinking about that for the next 14 years, putting more power than necessary in this woman's hands. That is a tremendous amount of energy. You perhaps have misunderstood my point. Not to mention the fact that at any age this is going to be devastating. Is it some how better in your mind to find out at 25 that your whole life was a lie? Do you think that child when an adult would understand better? Not necessarily so. So here it goes, in my opinion, the sooner the better or never at all. By forcing the issue you do two things: you have options and so do they, if they want to pretend you don't exist then give up rights and have the daddy that is raising him and might I add has given him his name... adopt him. Signing away the rights to ever come after your husband for support in the future in that process as well. Second, be in his life now and perhaps start having to pay support. Since this family that is already intact has a desire to see to it that this child stay in the dark as to who his true father is they may be interested in having the dad adopt and having you out of the picture. Choices that all of you have, but the consequences fall on this child whether now or later. It's a big deal and it's best to handle it wisely and carefully and not only because you don't want to pay child support to this woman if or when she needs to be supported again in the future.

[Help_77]

I apologize - thank you for explaining your stance MsMe... The fact that there will be 14 years of worry on my part makes me ill. My husband has talked to this woman since everything was established back in March and my husband seems to think she will "stay away" (for lack of better terminology). You see, this woman was my friend and slept with my husband anyway. I think she is burdened by a tremendous amount of guilt. Believe me, I hated BOTH of them for a very long time. But because I have a child with my husband and because we found out he was bipolar at the end of last year (before any of this came out) I vowed to forgive him for his past mistakes thinking that it wasn't the "real" him. He seems to think that she is being truthful when she says that she wants to keep her family intact, just like we want to keep ours intact. But I can't help but think that one day her guilt will subside and she will have a change of heart for some reason. My husband has hinted at wanting to help her out financially (outside of a court order) - I even went so far as to buy the kid a coat this year for him to give to her because I know she doesn't have a lot of money. And he said he will give her money monthly for medical premiums on a healthcare plan which is about $50 or $60 per month. I don't know - I guess I wonder if I can do this for the next 14 years... :( And that's why I was wanting to know if we would have any legal recourse down the road should her attitude change...

[MsMewiththat]

I think given the circumstances you should be proactive and force the issue. Some states and I'm not certain how yours works, but some allow for a person to go back and collect back support based on how much you make. So let's say your state allows four years. He can be held responsible for the amount of child support from today going back until birth. And be required to pay it. If you don't want a court order, put something in writing and have it notarized. Get her to acknowledge something and get something substantial to base the next 14 years of your life on. Here's the deal, the wind can blow wrong and she can get upset and take you to court and upset your life. Be proactive. It's nice that you have forgiven your husband and I'm not being judgmental. This woman borrowed your husband and you are trusting in what she says? Don't be a sitting duck.

[Fr_Chuck]

While she may come after the new husband , she would normally come after your husband the real father first, and then may try and get extra from the other husband.

He needs to clear this up, file for visits ( even if he decides not to) but 4 year olds are easy to adapt and now is the time to do it, not in 10 years when she divorces and makes you pay for sure.

So do the right thing, start paying the support you need to and have a relationship with your child

** his child

[cadillac59]

I think your husband should help the mom out financially, especially if she needs it, but I can't say I'd recommend getting an order on it.

I only had one case once where this sort of thing came up (it goes back now about 3 years). In that case my client and his wife were divorcing. Wife (who I thought was a horrible mother by the way) had a kid from another relationship and the two of them had two kids of their own.

My client had raised the wife's kid for several years and the boy came to see him as daddy. Wife had a lawyer (a lousy one at first) and then she found another one (a good one who's kind of a friend of mine now) and with the last lawyer she said she was going to ask my client pay child support for her son from this other relationship (the bio-dad was a total flake who didn't work and never saw the kid). I defended against it and told her lawyer I didn't think she could do this because the boy knew all along that he had a "real" dad elsewhere, which would serve to preclude a finding of parentage-by-estoppel (that's what we call it when we are trying to hold step-dads liable in California).

The judge said that in order for the mom to impose liability on my client she would have to first join the bio-dad to our divorce case, which takes time and is kind of a pain (it would have required a motion for joinder, an order on joinder and then service on the bio-dad of the order on joinder with summons) and then, when the bio-dad were part of our case, the court would decide on whom to impose liability for support. The other side gave up on trying to make my guy liable so the issue never went anywhere. Part of the problem was finding where the bio-dad was. As I said the issue just died.

So the point is, if the mom in this case ever decides to divorce, there's a chance that your husband may be brought into their divorce case as a party to litigate the issue of who owes the support on the child. Of course, there'a a good chance that in a divorce nobody is going to be thinking about making things this complex and just leave your husband out of it. The step-dad might just not argue about paying support and issue may just lie dormant.

If your husband were brought into the case I would argue that support ought to fall on the step-dad since he's the only one who has ever established a meaningful parental relationship with the child. The mom obviously cannot double-dip and collect support twice from two different people so the court would have to either decide one was liable and let the other off the hook or decide them both to be liable with one bearing primary liability and the other only being secondarily liable (like if the first doesn't or can't pay support only then you look to the other guy). I don't know of any case law that says how this would play out in any particular case so I cannot say whether your husband or the stepdad would be primarily liable. Like I said you could argue it either way but I think the stronger argument would be to make the stepdad the primarily responsible party.

My guess is the court would make some sort of primary/secondary liability analysis like I described rather than impose liability for support solely on either your husband or the stepdad. Does that make sense?

[Help_77]

Yes, Cadillac59 - it makes sense. While some of the terminology is hard to follow for the layman, I think I get it. :) And it's nice to know that there are other people out there - like those in your case - that have gone through the same thing. It's easy to feel alone when you're going through something like this. I have no one to talk to, because no one knows about this but us and I want to keep it that way. Needless to say, this is really embarrassing for me - being cheated on and all...

Can I ask, do you agree with MsMewiththat (thank you for your reply too, MsMe... by the way! Much appreciated!) that maybe getting this woman to sign a notarized letter of sorts would be worth it? At BOTH of their requests (she wanted to sign something stating that my husband would not contact the child or seek any kind of benefit - whatever that means - from the child - in other words, she doesn't want my husband getting into this kid's life and telling him everything... ) I drew up a letter stating something along the lines that if she agrees to NOT go after support that he agrees NOT to contact the kid. I also mentioned in this letter that she acknowledges that her husband is the only "dad" the kid knows, that he raised the kid since birth, the kid has HIS last name, etc. We don't expect her husband to sign it, just her. And she seems willing to do this in front of a notary. Like I said, she (at this time anyway) seems adamant about not disrupting their current family situation. Would something like this do any good?

[JudyKayTee]

[QUOTE=Help_77 disagrees: 4 year olds are easy to adapt? Do you HAVE children? I completely disagree with this statement. 4 year olds are well aware of who they can and cannot trust in their lives and who they know/love and do not know/love.[/QUOTE]


Please read the rules of the site: Ask Me Help Desk - FAQ.

You are posting on a legal thread, not a relationship thread.

[JudyKayTee]

Yes, Cadillac59 - it makes sense. While some of the terminology is hard to follow for the layman, I think I get it. :) And it's nice to know that there are other people out there - like those in your case - that have gone through the same thing. It's easy to feel alone when you're going through something like this. I have no one to talk to, because no one knows about this but us and I want to keep it that way. Needless to say, this is really embarrassing for me - being cheated on and all....

Can I ask, do you agree with MsMewiththat (thank you for your reply too, MsMe... by the way! Much appreciated!) that maybe getting this woman to sign a notarized letter of sorts would be worth it? At BOTH of their requests (she wanted to sign something stating that my husband would not contact the child or seek any kind of benefit - whatever that means - from the child - in other words, she doesn't want my husband getting into this kid's life and telling him everything...) I drew up a letter stating something along the lines that if she agrees to NOT go after support that he agrees NOT to contact the kid. I also mentioned in this letter that she acknowledges that her husband is the only "dad" the kid knows, that he raised the kid since birth, the the kid has HIS last name, etc. We don't expect her husband to sign it, just her. And she seems willing to do this in front of a notary. Like I said, she (at this time anyway) seems adamant about not disrupting their current family situation. Would something like this do any good?

In NY (at least) you cannot waive your legal rights - the right to be supported, the right to have a father in your life - only the Court can change that.

There have been other posts on this same subject - "someone" signs a "promise" not to visit in exchange for an agreement not to pay support and the next thing you know, some years down the road, the motion for back support is filed.

If you must do this, do it legally, through the Courts. While same advice makes you feel better all advice is not legally correct.

[Help_77]

Judy - how do you go about executing a document like that through the courts? They wouldn't let my husband relinquish his parental rights without a legal adoption, correct? So what would a document like this be called - assuming the child could not be adopted? (the woman's husband has a criminal record and they looked into it- he cannot adopt the kid for 10 more years... )

Also - I realize we are on a legal thread. That's why I replied to Fr. Chuck's response - he seems to be telling us to "do the right thing" as far as morality is concerned. That's not what I am here for - a lesson in morality. I'm here to find out our legal recourse. Perhaps you should have quoted him when posting your reply and link to the rules of this site? Anyhow - thanks for your response. You seem to know what you are talking about having read some of your other posts on this site...

[Help_77]

One more thing, Judy - I thought that in order for a motion for back support to be filed, there had to be an order in place to begin with? The woman wrote a letter and had the hearing to establish a support order cancelled. So nothing was ever put into place. How can she, some years down the road, try to get back support when she is the one who had the original hearing cancelled? That doesn't seem like it would be fair or correct?

[JudyKayTee]

I think given the circumstances you should be proactive and force the issue. Some states and I'm not certain how yours works, but some allow for a person to go back and collect back support based on how much you make. So let's say your state allows four years. He can be held responsible for the amount of child support from today going back til birth. and be required to pay it. If you don't want a court order, put something in writing and have it notarized. Get her to acknowledge something and get something substantial to base the next 14 years of your life on. Here's the deal, the wind can blow wrong and she can get upset and take you to court and upset your life. Be proactive. It's nice that you have forgiven your husband and I'm not being judgmental. This woman borrowed your husband and you are trusting in what she says? Don't be a sitting duck.

Do you have a website, something that lists which States allow for back support - ? I cannot find anything and this question comes up often.

In NY you can go back to the filing date, not before, so I'm interested in your research.

[cdad]

One more thing, Judy - I thought that in order for a motion for back support to be filed, there had to be an order in place to begin with? The woman wrote a letter and had the hearing to establish a support order cancelled. So nothing was ever put into place. How can she, some years down the road, try to get back support when she is the one who had the original hearing cancelled? That doesn't seem like it would be fair or correct?

Your not making any sense here. You said earlier that he did have an order against him because she was receiving assistance from the state. That original order would remain until age of majority or until the child would be adopted out. The amount could change if they were in court but the order remains ( best interest of the child ) and if she canceled a hearing to change it then it would remain in effect for the same amount and no changes at all would have taken place.
And I agree with FrChuck he needs to get this mess straightened out before he gets hit with big surprises. FrChuck did give legal advice. ( best interest of the child )

[Help_77]

I don't believe I ever stated that there was an order against him. What I said was that he found out about the kid when he received mail stating that he had to come in for a paternity test. Then he got the results. Then he got a letter from CSEA stating the date of the Administrative Hearing to Establish an Order. The woman got off welfare and wrote a letter to CSEA stating that she was off state aid and no longer needed their services. She stated that she and her husband did not want to disrupt their family life and that she wanted absolutely nothing to do with the bio father - my husband. And that her husband raised the kid since birth. And that the kid IS being supported by two parents, albeit one is a step parent. So you see, there was NEVER a hearing to establish an order - THEREFORE THERE IS NO ORDER. And I never stated there was. And "Do the right thing - have a relationship with your child" is NOT legal advice. It is MORAL advice. Thanks!