[rose721]

My husband had just turned 16 when a 20 yr old woman he had just started working with began pursuing him. Everyone there at work was trying to get the young "virgin" to "hook up" with this older female who seriously wanted to get with him. They invited him to an employee get together and when he showed up it was a party at her parents house and they started trying to get him drunk for the first time. It worked, he told his friend he wanted to leave and the woman told him that he could lay down in a spare bedroom for a little while to sober up. He passed out. He woke up to find her performing oral sex on him just before she put him inside of her. He said he never remembered much after that and thinks he might have passed out again. Anyway a few weeks later the 20 yr old was pregnant and his childhood and life were changed forever. She became very possessive pf him and wanted a relationship with the boy who had never so much as noticed her. She started collecting child support when he was 18. He says at no point was he asked to sign anything stating he was the child's birth father. He was never offered a paternity test either. He said a woman spoke only to his mom one time, however his mom being from a different country, did not understand what she was being told. The woman didn't explain anything to him. Well, it turns out that the woman was actually 26 at the time and lies about her age to everyone. She is now 33 yrs old. My husband is now 23 and the woman has been putting him through hell ever since that day. She is hateful and won't let him see the child, nor talk to the child even though he is paying support. He moved from California to Texas where he and I met and married and now have a child together. She is now trying to get him to sign his rights over because she has refused the insurance that he has offered for the child and says that by signing his rights over, her parents can claim the child on their full coverage state insurance. They work for the school and receive great medical benefits and want the child to be covered by that. He hasn't gotten to see his daughter in 2 years or talk to her. The mother yells every time he calls and is hateful because he has met someone and married. Is there anything that we can do? Can he still file for statutory rape or press charges or file a suit? Why is it that the hospital never reported the age or that Child protective services never got involved? Is it true that by signing over his rights the child can go on her grandparents insurance? By signing over his rights does he no longer have to pay child support?

[cdad]

You really need to talk to a lawyer. And not one near you but from California. You need to first and foremost find out what the SOL is on rape. ( statue of limitations ). Then from there talk to a family lawyer. You also need to see the priginal paperwork and court orders for support. Since he was a minor he should have had representation somewhere unless they sent the paperwork to him and he just ignored it. Before you can do anything you need to get your ducks in a row and proceed with caution. Also I forgot to say there may be civil action that can be taken against the mother of the child for getting him a minor drunk. The drinking age for California is 21.

[cadillac59]

I don't think there is much of anything this guy can or should do other than file an action for custody or visitation. Sorry.

If he wants to report this to the District Attorney's Office for the county in which the alleged rape occurred, fine. I doubt very much they would do anything about it at this late date (is there a statute of limitations on this, after all it's 7 years old?--probably--you might ask that question on the criminal law board--this is the family law board and that's out of my field of practice). It wouldn't hurt to report this incident I suppose (incidentally, allow me to clear up a common misconception: District Attorneys file criminal charges against people, not private citizens. Private citizens are victims who can be compelled, even over their own objections, to participate as witnesses in criminal cases).

A civil suit over this is too late as time-barred by the statute of limitations. Further, the dad in this case cannot challenge paternity--that too is too late. And finally, he cannot give up his parental rights unless there is someone out there willing to adopt the child.

Like I said, if he wants custody or visitation I suppose he can try that. There's not much else to be said about this case frankly.

[ScottGem]

As Cadillac noted, he can't just give up his rights. Parental rights have to be terminated by a court and they are very reluctant to do so.

The SOL on Statutory Rape would be 3 years in CA in this case (where there was more than a 3 year difference in ages see Teen Life Q&A: The Limits of Statutory Rape)
So it is too late to file. The underage drinking has also probably expired.

But CAdad is right in that you need to get your ducks in a row before you do anything else. You need to get copies of all the court orders, trial transcripts and any other paperwork. You need to then bring them to an attorney (or hire one first and have them get the papers) . Only then will you know where you stand. There is a possibility a fraud was perpetrated on your husband. If no paternity test was done, then one needs to be performed. If the child is not his, then the woman would have to know that, since his sexual encounter was a one time thing, that there were other potential fathers.

But this is a fairly complex case. Its not very clearcut, so he needs an attorney.

[cdad]

Here are 2 references to check..

California Statutory Rape FAQ | Sexlaws.org

WAIS Document Retrieval

[cadillac59]

I don't disagree with Scott or CAdad in that it wouldn't hurt to gather all your paperwork and have a consult with a good attorney. Like I said, I think it's too late to challenge paternity. Since a support order was entered when your husband was 18, paternity was almost surely established by default judgment (I think you said he never signed anything acknowledging paternity). Now, that being the case, there's a two-year statute of limitations to file an action to set aside a paternity judgment entered by default (Cal. Fam. Code Section 7646(a)(1))) and that runs from the earlier of the date the father knew or should have known of the judgment establishing him as father or within 2 years of the date he knew or should have known of the existence of an action to adjudicate the issue of paternity. He probably knew or should have known that he was adjudicated the father of the child back when he was 18 and knew of the child support order going into effect (if he found out about it later I bet he discovered it more than 2 years ago--correct me if I'm wrong- and since he's what, 23 that order has been in effect 5 years?).

We had a pilot program a few years ago that left the door open for a two-year window period from the date the pilot program went into effect for dads subjected to old default paternity judgments to come into court--even if the case was 10 years old-- and to ask for genetic testing and if proven not the father they could get a set aside on the old default judgment and have any arrears annulled. But that subdivision of section 7646 had a sunset provision and it expired two years ago and was not renewed.

One of the reasons I participate on this board it to counter so many of the myriad of urban legends and myths out there surrounding family law issues. One such myth, at least as far as California is concerned, is the notion that if you are not biologically a dad and have an old support order against you you can trot into court anytime you like, say even 10 years after an old support order was entered by default, demand genetic testing and if you prove you are not the dad, avoid the child support order. No way! There's a two-year statute of limitations on that. And if you wait too long, tough luck. There are thousands of guys out there paying support on kids that are not their biological children and there is nothing many of them can do about it. I think it stinks too, but that's the law in many cases.

So your guy's out of luck, sorry to say. He cannot even ask for genetic testing now (you sleep on your rights and you lose them).

As far as suing the mom for fraud- forget it. It too is too late.

Have your consult with a lawyer if you like but I doubt anyone is going to touch this case (for anything other than getting custody/visitation rights).

I wouldn't touch this case with someone else's 10-foot pole myself.