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abusymom · Apr 18, 2012, 02:19 PM

Please help! Very sticky situation. So, my ex-husband claims parentage by estopple with my 10yr old daughter whom is not his bio child. Quick rundown - we were married, and then separated in 2001. I and bio dad conceived. Things didn't work out and when I was 8 months, me and husband got back together. That didn't last long and I eventually moved out. I filled for child support with bio dad in 2005 but he was incarcerated therefore case was dismissed lack of prosecution. Now my question: How can I get this BS parentage/visitation removed? Facts: Neither has ever paid a dime. Bio not US Citizen, Child's last name is mothers maiden name. Let me know if you need further info.

cdad · Apr 18, 2012, 02:25 PM

Was the child born while you were still married?

abusymom · Apr 18, 2012, 02:28 PM

Child was born in 2002 - so yes, but we did not live together and we were both in separate relationships. Ex-husband has known all along the child was not his. However, I did have another son in 2006 (while we were married also) whom he never claimed. Basically we went our separate ways and never bothered filing for divorce. He finally did because he became engaged.

cdad · Apr 18, 2012, 02:32 PM

If your in the united states then the legal father (presumed) is your ex husband. Unless there has been some challenge in a courtroom then he will remain the legal father regardless of DNA.

abusymom · Apr 18, 2012, 02:38 PM

So basically, women can get married have a crap load of kids and stick it to their husband? This is the most ridiculous law EVER. The law should be if BOTH agree, then proceed. So what am I supposed to tell her bio dad? Uhh sorry but the law says even though their DNA doesn't match, she will have to call him Daddy. We live in a sick and twisted world.

abusymom · Apr 18, 2012, 02:39 PM

Is there a statue of limitations on doing this? It seems unappropriate that all of a sudden he wants to be her "dad" after 10yrs. And isn't required to pay a dime for her?

cdad · Apr 18, 2012, 02:47 PM

Since you haven't revealed what state this is happening in then your not really going to get an answer. It varies by state. So without knowing for sure what applies to your situation there is no way to answer the question.

abusymom · Apr 18, 2012, 02:48 PM

California

cdad · Apr 18, 2012, 03:04 PM

Here is the law and what it says. Basically there is a 2 year window for a challenge.

Challenging Paternity Judgments | Time Limitations

ScottGem · Apr 18, 2012, 03:14 PM

Originally Posted by abusymom

So basically, women can get married have a crap load of kids and stick it to their husband? This is the most ridiculous law EVER. The law should be if BOTH agree, then proceed. So what am I supposed to tell her bio dad? Uhh sorry but the law says even though their DNA doesn't match, she will have to call him Daddy. We live in a sick and twisted world.

While is don't disagree that sometimes laws don't make sense, that's not the case here. You are looking at this from the wrong angle and wrong interpretation of the law. In the US, when a child is born to a married couple, the husband is presumed to be the father. However, this is not absolute. That paternity CAN be challenged. It can be challenged by the presumed father or by the bio father. In some cases there is a limited window of time during which a challenge can be mounted. And there may be specific conditions for the challenge to be successful.

If its too late for the bio dad to challenge, that's not the law's fault that's your fault.There is nothing sick and twisted about it.

abusymom · Apr 18, 2012, 03:23 PM

But on the flip side, it doesn't work both ways. The law states a child born durning the marriage is presumed the to be the husbands, yet HE had another child but I'm not presumed to be the mother. Now, you would say obviously that isn't possible being you didn't give birth to that child. But with the same valid point, obviously he didn't contribute his sperm.

abusymom · Apr 18, 2012, 03:30 PM

Originally Posted by califdadof3

Here is the law and what it says. Basically there is a 2 year window for a challange.

Challenging Paternity Judgments | Time Limitations

"Within a two-year period commencing with the date of the child' s birth if paternity was established by a voluntary declaration of paternity." She's now 10yrs old. Which brings me back to the statue of limitations question. How can he now, 10yrs later establish parentage only because he filed for divorce?

ScottGem · Apr 18, 2012, 03:50 PM

Originally Posted by abusymom

But on the flip side, it doesn't work both ways. The law states a child born durning the marriage is presumed the to be the husbands, yet HE had another child but I'm not presumed to be the mother. Now, you would say obviously that isn't possible being you didn't give birth to that child. But with the same valid point, obviously he didn't contribute his sperm.

On the face of it, this seems discriminatory. But you can't argue with biology here. When a woman gives birth there is no presumption of paternity, paternity is a biological fact. On the other hand, there also has to be a father. To make the process of assigning paternity easier the husband is presumed to be the father since in the vast majority of cases he will be.

But, again, there is a mechanism for challenges. And again, if you lost that window of opportunity for challenge that's not the law's fault.

abusymom · Apr 18, 2012, 03:57 PM

Originally Posted by ScottGem

On the face of it, this seems discriminatory. But you can't argue with biology here. When a woman gives birth there is no presumption of paternity, paternity is a biological fact. On the other hand, there also has to be a father. To make the process of assigning paternity easier the husband is presumed to be the father since in the vast majority of cases he will be.

But, again, there is a mechanism for challenges. And again, if you lost that window of opportunity for challenge that's not the law's fault.

Lost the window of opportunity? You mean the one that they disregarded being that my daughter is TEN? Plain and simple the law is discriminatory. I'm not disagreeing with biology - but it seems that the law picks and chooses biology in regards to paternity. In the vast majority, this is true but what about the rights to biological parent?

ScottGem · Apr 18, 2012, 04:08 PM

Originally Posted by abusymom

Lost the window of opportunity? You mean the one that they disregarded being that my daughter is TEN? Plain and simple the law is discriminatory. I'm not disagreeing with biology - but it seems that the law picks and chooses biology in regards to paternity. In the vast majority, this is true but what about the rights to biological parent?

No the law is dealing with Biology not picking and choosing.

As to the rights of the bio parent, they have to exercise those rights in a timely basis. But those rights are there.

abusymom · Apr 18, 2012, 04:09 PM

According to the law, they have NO rights.

Synnen · Apr 18, 2012, 04:50 PM

Actually, the law REALLY protects the rights of biological parents.

If the biological father didn't step up and challenge the paternity in the first 2 years, that's HIS fault, not the law's fault.

HE HAD TWO YEARS TO CHALLENGE!

That's a HELL of a lot longer than birthparents get to challenge an adoption, ma'am.

If he didn't exercise his rights in TWO YEARS, then that's YOUR problem and HIS problem, but not the problem of the law.

abusymom · Apr 18, 2012, 04:57 PM

Originally Posted by Synnen

Actually, the law REALLY protects the rights of biological parents.

If the biological father didn't step up and challenge the paternity in the first 2 years, that's HIS fault, not the law's fault.

HE HAD TWO YEARS TO CHALLENGE!!

That's a HELL of a lot longer than birthparents get to challenge an adoption, ma'am.

If he didn't exercise his rights in TWO YEARS, then that's YOUR problem and HIS problem, but not the problem of the law.

Whooooa hold on tiger. There was nothing to challenge. Each knew who the father was. Neither was paying child support. I filed for support against bio in 2006 and it was dismissed lack of prosection. When he was released, he had visits and he sent me cash when he could. Ex-husband filed for divorce, and all of a sudden wants visitation/parentage. It is the problem of the law, the law is granting my ex parentage just because we were married, and didn't factor in that we were separated NOR cohabiting. Yet he has another kid, and no problems there. That kid has has a bio mom/dad with no one else to question it - even though HE was married to another woman.

Alty · Apr 18, 2012, 04:57 PM

I'm not a legal expert, and I do sympathize, but I have to state this. You keep saying "she's ten years old!".

Yes, she is. You've had 10 years to set this straight. The only reason you're mad about it now is that push has come to shove, but you seemed to be fine with it for the last 10 years.

Like everyone else has stated, it's not the laws fault, it's the people involved. This is 10 years overdue, but even then, you had 2 years to settle it, which you didn't do. You're only doing it now because you're pushed into a corner.

You can't always blame the law. Sometimes you have to accept your part of the blame.

Alty · Apr 18, 2012, 05:02 PM

You also don't seem to understand why the husband is presumed to be the parent of children born to his wife.

Most people don't cheat, or have relationships outside their marriage. If every child born was scrutinized as the product of an affair, boy oh boy. Marriage is a legal institution, and the law presumes that children born to a married couple are biologically the husbands children.

Of course the child he had with another woman isn't presumed to be yours, even though you were married. There's a huge difference between men and women. Women can easily prove paternity. They carry the child! It's very obvious that the child belongs to them biologically. It's not so easy for the man.