Hey, I have to ask you a VERY stupid question....<BR>First off I understand you are a lawyer.<BR>I was reading your responses to ohbratti1 in her thread, and I have to ask this...<BR>When my twins were born, MM admitted paternity and put his name on the BC in the hospital (w/out my knowledge as I was in ICU).<BR>I really did not want paternity established (ie:how can he have rights if he is not named). Once the paternity was established,we established me getting sole custody..So, I have no legal issues. But,....in one aspect I can see ohbrattis point. I was TOLD by a friend who is a social worker that "if paternity is not established, and the father gets ahold of the child (ie: kidnaps it in my opinion), then if he tells the police he is the father, than no charges could be filed. What would happen is that the child would be returned to mother and paternity would then have to be established. In other words, the father could get away with it.Am I wrong? I am asking because truthfully this was one of my biggest fears when I was contemplating NOT having paternity established....<P><BR>

I should add to my statement. We did not legally establish me getting custody. I ASSUME I have custody because we have nothing in place saying anything differently (ie:him having custody), and the twins live with me.<BR>We have never had a problem (and I don't forsee one in the future).<BR>The only thing we have legally in place in the agreement in which I gave up C.S.<BR>So, that kind of shed light on to why I am asking that question. Thanks!

I hope you don't mind my two cents. Because of my situation, I've gone into overdrive in my efforts to educate myself on this very matter. I have the good fortune of being able to consult, on a personal level, a family court judge as he is a family friend. According to this judge, paternity is established one of four ways. <BR>1) If the mother is married at the time of birth, the child is therefore considered to be conceived of the marriage, making the child the H legitimate child/heir, regardless of genetics, and barring the fathers refusal of the child.<BR>2) Genetic testing is conducted and the alleged father is named as the rebuttable father, per the results of the tests.<BR>3) The father signs a declaration of paternity, which he can contest within a 2 year time frame. If he contests, then you go back to genetic testing.<BR>4) This one varies by state. If, at the time of birth, the mother is living with her boyfriend, that boyfriend can be identified as the presumed father, IF he chooses to do so. If he agrees and later changes his mind, you go back to #3.<P>Once paternity has been established, and court ordered custody has NOT been obtained, the father has as much right to that child as you do. That means that he can walk away with said child(ren) at any time and it is not considered kidnapping. Law enforcement's questions would be "How can a father kidnap his own child?" and "Do you have any documentation (Findings: custody papers clearly identifying the custody parameters…it must be approved by a JUDGE) that states the father should not have his children?" If you do not, then he is not breaking any laws and it would be considered a civil matter. Which leaves you with having to petition the court for custody to get your babies back. In my previous sentence I capitalized "judge". I do that because a private agreement, notarized or not, will not hold up in court. It would not be considered legal and binding. Therefore, the law (police) will not enforce it.<P>Some parents have a good, working relationship and do not have to fear this type of situation. But some are facing a lot of unknowns that could potentially put the custody of their children at risk. So, seeking custody in court may not have to be a necessary "evil" for everyone, but for some it would be the prudent thing to do.<P>I hope this helps.<BR>

<BR>Duranie,<P>Nope, I'm not a lawyer, but I have studied how family courts operate. I don't want to dicuss my background in detail, although certain folks in this forum can vouch for me (hi, catnip =^^=).<P>The short version of the your situation is this. If you are married, the paternity of your children is automatically assigned to your husband; this is the rebuttable "assumed paternity" about which I've written elsewhere. If you are unmarried, mothers automatically have sole custody. The father must proactively seek to establish LEGAL paternity in order to have any rights at all. This can be done, as O notes, by signing a declaration of paternity. Alternatively, the father can sue for access to the child in court, and the court would require a DNA test to legally establish paternity. Such conduct almost always results in a child support order being entered as well.<P>The confusion here, I think, is that O falsely believes that a privately-conducted DNA test establishes legal paternity. It does not, as the results must be ordered/recognized by the courts. Thus, a biological father who has not *legally* established paternity has no rights, and would be arrested for kidnapping if he tried to take a child. It does not matter that he *is* the father until he *legally* establishes that fact through the courts.<P>O is correct that custody orders from a judge are binding on the father once paternity is established. But again, so what? She is forcing someone with no rights whatsoever into court to assure that he *does* have rights. For someone who continues to claim that she doesn't trust the wife, O's behavior is frankly irrational.<P>If I have time this weekend, I'll pull up WestLaw and see what California case law applies here. <P>Bystander

Thanks for the replies....<BR>Bystander-<BR>I guess I was just confused. I was kind of "secure" in my position until I read certain things. I know that xMM would not "kidnap" the twins, but when he gets pissed he uses them as "leverage" against me (ie: I;ll take them if you don't do this, etc.). He has always had that personality which is why I DIDN'T want paternity established (he KNEW that and did it anyways in the hospital). But, considering it IS established,I was just wondering where that "placed" my status with the boys. I have no intention of going to court for anything (once you are in family court C.S. is almost immediatly established) including custody. I guess I jusr wanted reassurance. Thanks!!<P><BR>

<BR>Duranie,<P>Did your xMM sign a declaration of paternity? That's the only way he could establish himself as the father without going to court and submitting to a DNA test. More to the point, simply putting his name on the birth certificate does *not* mean he is legally the father. If he did sign a declaration of paternity, then yes, he is legally the father.<P>Lets assume that he did sign a declaration of paternity. What does this mean to you, given that you already have sole custody? For starters, he *could* try to assert his rights by seeking visitation or even a modification of custody (from sole custody to joint or even sole custody in his favor). His threat is therefore *possible*, but I don't see it as *probable*.<P>Here's what would happen. You could countersue for the extortionary guideline CS, and he would have to make a decision. If he wanted to persue his custody action, he would have to pay about 27% of his net pay to you, REGARDLESS of whether he is awarded custody or even visitation. The fact is, you WOULD win a CS judgment against him, and given that he's pushing the issue against your will, you wouldn't have any reason to make the CS amount fair at all. This is one of the few times that the punitive CS guidelines might have value, I suppose.<P>Now, what would happen on his behalf? Unless you are a just God-awful mother (e.g., drug-pusher with several criminal convictions for endangering the children, etc) you wouldn't lose custody. OTOH, unless he is a God-awful father, he very likely WOULD get visitation with the kids, with you retaining custody.<P>I personally don't think you have anything to fear. If he insists on trying for custody, insist on a CS judgment. This is the real trade he'd have to make - and my gut tells me he's unwilling to pay through the nose to have the kids 20% of the time.<P>Bystander

Duranie,<P>I'm sorry. I realize this is your post and that you have valid concerns, so I just want to make a quick statement/request to Bystander and then I'll retreat from your post.<P>Bystander,<P>You have drawn some inaccurate conclusions about my situation. I don't believe that Duranie's post is the "forum" in which to address them. However, I would like the opportunity to present the details that may clarify some of the misunderstanding...particularly the belief that I am "forcing" them into court and that I falsely believe that a DNA test establishes legal paternity (which is not what I stated). I would like to address those concerns in a separate post.<BR>

<BR>O,<P>Okay, but I'll probably be unable to respond until Monday afternoon. I'll try to get the Westlaw cites for California, but I can't promise that.<P>Bystander