[kwalton]

My fiancé pays child support to a woman that was a one night stand over 15 years ago. She didn't tell him or ask for child support until the child was 7 years old and my fiancé was out of town working for 3 months when the notice came to the house he lived at but was not there and his ex girl friend got the letter and did not tell him because she was mad at him about it. Anyway, the mother refuses to get a DNA test done to prove to him it is his daughter which we both don't think she is because the mother is african american and my fiancé is white and the child does not looked mixed at all she is very dark skinned and looks nothing like him. Also another man signed the birth certificate when the child was born. The DSS worker that is incharge of my fiancés case said even if the child turns out to not be his he would still have to pay child support. Is that true? And also is there anything he can do to not have to pay child support to this woman?

[GV70]

Which state ? The laws vary from state to state.

[Fr_Chuck]

In most cases if another man is listed as father on the birth certificate he should not be paying a penny in support.

The legal father pays support if there is one listed.

What he does, is file to have this heard in family court and get it solved. He hires an attorney and fights it

[ScottGem]

So what it sounds like is your fiancée never got the notice of a hearing, so he didn't appear. Because he didn't appear, a default judgment was entered against him for support.

The mother must have submitted some proof that the father listed on the birth certificate was not the bio father. So the court declared your fiancée as the legal father. The mother may not have changed the because, but the courts probably issued an order.

You say this one night stand occurred 15 years ago. That would make the child about 14. Which means the support order happened 7 years ago. What has he been doing for the last 7 years? As soon as he found out about the support order, he should have filed in court to have a paternity test done. The mother can't refuse a court order. He should be having NO direct contact with the mother but do everything through the courts.

My suspicion here is that you have only known him a relatively short time. So you only know what really happened when the child was conceived and when the support was ordered from what he has told you. And he may not be telling you the whole story. Unless you have seen copies of the court transcripts, you can't be sure.

My suggestion is to consult an attorney (not a DSS worker) as to his rights and what he can do to determine paternity and, possibly, end support.

[samcreed]

Your fiancé should see a lawyer, and find out what to do. This sounds really involved, and he should be the one to make an appointment with a lawyer. If he doesn't want to do this, then I would ask him if you make an appointment, would he go then. It's all up to him. Good luck, and hope you have a great new year.

[kwalton]

I have been with him for 3 years we have a one year old together so I've known him for a while and I go to court with him and have seen all documents, he has been paying the child support since he found out but your right he didn't get the notice until it was too late to fight it. So how do we go about getting a court order to get a DNA test done because the mother has lied to everyone telling them she had a DNA test done and he was the father which first off she never had anything to compare it to my fiancés DNA and secondly she has never shown proof of it. She even told her family she had one done but when we asked them if they actually saw it they all said no. I just don't understand why she waited until the child was 7 years old to claim my fiancé was the father. From what her family has told me the man who signed the BC found out the child wasn't his so he took her to court and after that she decided to pin it on my fiancé which I wouldn't mind if the child was actually his but after seeing the child and having the mother fight us for a DNA test I highly doubt she is his. Him paying this child support is effecting him supporting his actual son that we have together. I would just like to know if there is something we can do because it seems everyone we talk to says we can't do anything about it.

[kwalton]

Which state ? The laws vary from state to state.

North Carolina

[ScottGem]

I suspect she waited until the child was 7 because the man listed on the because found out somehow he wasn't the father and got support stopped.

So your fiancée now goes to court and files an appeal to overturn the support order on the grounds that paternity was never approved. I would highly recommend he get an attorney to help him through this. Because he hasn't protested for 7 years, it may be very hard to mount an appeal. This is probably why most people are telling you you can't do anything because its too late. So ask an attorney who can check the law and will know the courts.

[GV70]

Effective January 1, 2012, North Carolina law provides processes to set aside a paternity determination and grant relief from a child support obligation to a man who is determined not to be the responsible father of a child. This process is in addition to the provisions of G.S 1A-1, Rule 60.
ACTIONS TO SET ASIDE PATERNITY (G.S. 49-14 or G.S. 110-132) -

A determination of paternity made under G.S. 49-14 (civil order) or G.S. 110-132 ( Affidavit of Parentage) can be set aside if:

The paternity order or Affidavit of Parentage was entered due to fraud, duress, mutual mistake, or excusable neglect; and
Genetic tests establish that the man who was determined by these actions to be the father of a child is not the biological father of that child.

The burden of proof in an action to set aside a paternity determination belongs to the moving party. If the court finds that a proper motion has been presented, paternity testing is ordered. In accordance with G.S. 8-50.1, the moving party is responsible for the cost of the testing. CSS should not schedule, arrange or participate in any paternity testing until it has been ordered by the court. Based upon the criteria stated above, the setting aside of a paternity determination is at the discretion of the court.
ACTIONS TO SET ASIDE SUPPORT (G.S. 50-13.13) -

Under G.S. 50-13.13, only a father who has been ordered to pay child support can file an action to seek relief from the support obligation. This action can be either a motion in the existing order or a separate action. It must be filed with the court within one (1) year from the date that the movant knew or reasonably should have known that he was not the child's father.

NOTE: A "grace period" authorized in the law extends the initial opportunity to file actions under G.S. 50-13.13 to January 1, 2013, regardless of when the father came to believe he might not be the child's biological father. After that date, the one-year restriction applies.

The requirements for this action are:

The moving party must verify the motion or claim;
The motion or claim must state the basis for the belief that the movant is not the father;
The movant either has not acknowledged paternity or has acknowledged paternity not knowing that he was not the father ("acknowledging paternity" is defined as publicly acknowledging the child as his while married to the child's mother, supporting the child, signing an Affidavit Of Parentage, VSA, or other legal agreement, or admitting paternity in court);
The movant has not adopted or legitimated the child or fathered the child through artificial insemination; and
The movant has not prevented the biological father from asserting his parental rights regarding the child.

The court can appoint a guardian ad litem for the child, but it is not required to do so. The CSS agency can elect to request this appointment if it would best serve the interest of the child. Responsibility for the cost for the guardian ad litem is determined by the court.

If the court finds that good cause exists to believe that the movant is not the child's father, paternity testing must be ordered. The moving party must pay the cost of testing. The court can hold any person who fails to comply with the order for paternity testing in contempt, impose sanctions, or both. CSS should not schedule, arrange, or participate in any paternity testing until it has been ordered by the court.

For CSS cases, support payments must be suspended while the motion is pending. CSS must ensure that all receipts are handled in accordance with the order of the court.

The court can grant relief from (terminate) a child support obligation if:

Paternity has been set aside under G.S. 49-14 or G.S 110-132, or
In this action, the court finds that (1.) paternity testing excludes the movant as the child's biological father; and (2.) the movant either did not acknowledge paternity or did so not knowing that he was not the child's father.

If the movant does not satisfy all requirements, the court must deny the motion and all paternity, support, and custody orders remain in effect.

If the court finds that the movant did not act in good faith, attorney fees are awarded to the prevailing party.

If the court determines that all requirements have been met, an order is entered to terminate the support obligation:

All unpaid support due prior to the filing of the motion remains owed.
The CSS case becomes an "Arrears-Only" case and all appropriate enforcement actions are taken to collect the reamining arrearage.


Child Support Services PATERNITY

[ScottGem]

It looks like, under the law as GV indicated, your boyfriend is out of luck. Both the 1 year period for filing as well as the grace period have past. Which means he missed the boat.

Again, I strongly suggest he consult a local Family Law attorney to confirm this, but I don't hold out much hope for him.

[kwalton]

But then how was the first guy able to get out of paying child support after 7 years? He was in the same situation my fiancé is in now and somehow he got out of it after his gace period was up because he thought he was the father somehow he foundout he wasn't and proved he wasn't by a paternity test and the courts stopped making him pay. Which is the only reason I thought my fiancé might have a chance because I know he missed the gace period as well. I'm not sure if you can answer this but do you think I would get charged money just to call an attorney and ask him these questions? Or might he just let me know weather we have a chance with getting this dismissed at all or if we should just give up?

Also, thank you so much for all of the information. It has helped so much I really apprichiate it a lot.

[ScottGem]

As GV said, the current law was passed last year. So he may have gotten out of it before the current law was passed. You should try to find court records where his support order was rescinded.

Many attorneys will offer an initial free consultation so you can call around. But all they can tell you is possibilities. Before they agree to do any work you will have to pay.

[AK lawyer]

...
Under G.S. 50-13.13, only a father who has been ordered to pay child support can file an action to seek relief from the support obligation. This action can be either a motion in the existing order or a separate action. It must be filed with the court within one (1) year from the date that the movant knew or reasonably should have known that he was not the child's father....

It looks like the grace period has indeed expired. However it is not clear when he first knew or should have known that he was not the father. If this was less than a year ago, he may still have a window of opportunity.