Got a few free moments after all!!

First, jaggerslady,
You can give her complete and sole custody of oc, but it will not prevent her from filing a child support claim. Child support and custody are seen as totally separate issues under the law. Your h can sign away all of his visitation and custody rights, and STILL it will NOT relieve him of the obligation to pay child support for the child. The ONLY way he can dodge that bullet is if ow has another man who is ready and willing to adopt the oc as his own. The basic view on that is that child support obligations have to fall on somebody, and that ow cannot sign away the child's rights to support by ANY means other than stepparent adoption - in which case the state figures that the adoptive father is on the hook. I don't necessarily disagree with the reasoning behind these laws - it prevents the state from picking up the tab for the children of unmarried mothers, however it strikes me as odd that single mothers can ADOPT children on their own with no father to pay child support.

So, short answer is that no matter what rights your husband is willing to sign away, he will not be able to buy the peace and freedom you are looking for. and there is no reason to give uup your rights to the child if there is no potential gain in doing so, and legally, there just isn't.

As for child support papers, I would definitely wait to be served with papers. I would make no overt efforts to find out if she has filed, and I would do nothing that would indicate that he is claiming responsibility for the child. Deal with it when the time comes. The longer she waits to file, the less you will have to pay, since Pennsylvania is a state where child support is retroactive only to the date of filing. If she waits ten years to file for child support, that is ten years in which you don't have to pay a dime. And you just never know. Operate under the theory of "don't go looking for trouble, let it come to you instead." And get that child support action for your kids filed and on the ball. Please let me know if you have any problems with that. You shouldn't run into glitches, but if you do, I'll try to help you smooth them out. Just remember to maintain to everyone that a separation is in effect. What you feel privately in your heart is no one's business.

angelia,
although presumption of paternity applies in some states when a married woman gets pregnant to a man that is not her husband, meaning that the husband is usually considered by default the legal father of the child, the attorney's for the woman's husband will probably "argue in equity" about the matter. This means that they will ask the judge to make a ruling based on "fairness and justice", and to be quite honest, it probably ain't fair to have a guy pay child support for children that are not biologically his. However, it takes quite a bit to sway a judge into making a ruling that is contrary to caselaw. But the attorneys for the husband probably figure they have nothing to lose by making the argument. If they are lucky (and if your h is unlucky) the judge will disregard the motion to avoid the DNA testing and will order DNA testing of all parties. The good news is that the law is definitely on your side in this case, and for people in your position, that is rare indeed. I have seen cases where presumption of paternity has been overruled, but not generally in states that really stick to it. I think your h has a fair shot of getting out of this, really.

-cd

CD: Thanks.! I know that the attorney has asked for a motion for this case to be moved out of the "hearing" person that you referred to earlier and into an actual judge courtroom where they can argue the case law. Don't know if that will help but we are hoping.

Thanks again!!!!

CD: One more thing I forgot about and would like to hear your thoughts.....

The attorney says that FL is a 'presumed paternity' state.

There are no attorneys for the husband - they are currently divorced and that divorce was 9 months after the birth of oc.

The attorneys serving my husband papers are the attorneys for the state of FL department of revenue. (They are the ones that sent the papers for dna testing without regards to the legal father's rights at time of birth (that's the legal jargon on the papers)

Thoughts?

Thanks!

Angelia

angelia,
It's hard to tell really. Could be a number of reasons that the dept. did not go after her husband first.

my guess is that the ow never told the dept. of revenue that she was married at the time of conception. Either that, or some joker at the lower-level did not comprehend the laws of Florida. You should definitely be happy that you are in a state that still has presumption of paternity. Your h may just dodge the bullet on this one. I'm really crossing my fingers that everything turns out ok for you, and that you'll be able to put this behind you someday and go on with the rest of your married life. Please let me know if you have mroe questions.
-cd

I too, hope that your date went very well, you strike me as a very nice person, and deserve all the happiness in the world. You have been such a great help to so many on the board, and I truly wish you the best. <img border="0" title="" alt="[Smile]" src="images/icons/smile.gif" />

Bridgette

Lady_terry,
My date was fabulous. I am seeing a guy who had been a friend for some time. The hardest part so far is that I am always wondering how much contact with my children (I have four young boys) is appropriate, because they are still reeling from the divorce, and from the crazy antics of my ex. But it certainly is wonderful to have somebody treat me like a lady. My boys were at my ex's house for this whole week, so we had lots of "couple time" for a change. On New Year's Eve, We went out to a nice restaurant with some friends, and then were in bed by about 11. (Hey, I am 29, free and single, ya know!) It was a great evening. I feel like a lovestruck teenager, and it feels so good to be happy again. I am scared sometimes about beginning a new relationship - and the least little thing can set off paranoia in me - but I feel wildly attracted to this man in many ways, and I think he loves me for me. So it is something very special right now, and I hope it lasts a long, long time.

Aside from that, I am also just happy to be able to help here any way I can. It is something that really makes me feel like there is a purpose to all I have been through.

Happy New Year's!
-cd

Angelia,
I just wanted to throw one more thing into the info pool...
Do you know when OW's exH filed for divorce? Did he know all through her pregnancy that the baby wasn't or may not be his? I'm asking because many states, including mine, do not allow a man to divorce a pregnant woman, essentially forcing the man to be considered the legal father even if he knows the child isn't his, because he can't get a divorce. Kind of a catch 22.. Anyway, it could be an argument for his attorney, if he has one. Is the exH involved with the child? If so, that would make it even more difficult for her to pin the child on your H. Courts don't usually like to break up established family relationships.
But I wonder if the H didn't just assume the baby was his, because I know that a man can request a DNA test as part of a divorce, though they have to foot the bill. When my older son's dad and I got divorced he requested one, even though he knew our son was his. (I don't know why he did, there was no infidelity) I think it was something his lawyer suggested. Our divorce wasn't finalized until the results cam back. But again, all states are different. If OW's exH has any kind of proof at all of her A, he can request DNA testing himself, but he'd have to have some kind of proof (letters, emails)to have his request submitted, and even then many judges will still not grant the test.
If exOW went to her exH and asked HIM to do a DNA test with her that would prove he isn't the father, the courts can overturn his parentage, then she can come after your H. It sounds like your situation will likely hinge on the OWs exH.

Can't Deal with You......

The affidavit we received attached to the court stuff (the affidavit was filled out by ow) says that their divorce was 9 months after the birth of oc. That is one of the things our attorney is contesting.

Our attorney says that her exH is presumed the legal father and that in order to make my H do dna test, etc then the state would have to "bastardize" an already legitimate child (whether or not it is her ExH's bio child or not)
Just a note that the word bastardize is what the attorney called the "process" of taking a legitimate child of a legal father and taking away it's father to give it a new bio-father...Or something along those lines.

I (we) are just waiting...it's a horrible wait and see process. She has another 20 days or so to produce the documents the attorneys have subpoenaed (the child's b.c. and her divorce decree as well as the documentation she had to produce to the state in order for the bc to be issued)

I would love it if the legal system would somehow be in our favor.....Would make me very happy.

Angelia

Angelia,
This is a round-a-bout and rather sneaky suggestion, but it might give you some peace of mind...Does your H have any contact with OC? I thought you said no, but if he had the child without OW around for even a few minutes, you two could do your own DNA test. You can order home kits from many places, but check out Genetree.com.
What you do is swab the baby and alleged fathers cheeks and mail the samples back to the lab. You don't even need the mother. Because the samples aren't collected in a lab, they're not legally admissable, but are just as accurate as a test done in a lab. When you send the sample back you can even use a fake name, the results are confidential and can give you some answers. It costs a couple hundred dollars.
At least then the two of you would know, and exOW would know nothing about it. If it turned out OC was really your H's, you'd have a heads up and could plan a strategy.
It might be worth your H "buttering up" exOW to get an hour or two alone with OC.
Like I said, it's sneaky, but....

I think that is a very good suggestion, but it does present a few risks. Mostly, because if the courts get wind that angelia's husband has had contact with the child and has actually participated in a test, the court may consider that he has "reason" to believe that he is the father. Also, the other side may subpeona the test results. I'm not sure that they would have legal entitlement for them, but they could try. I think angelia is best of holding still for the time being, but only because she is in a unique set of circumstances in that ow was married at the time, and presumption of paternity may just relieve her h of any child support obligations, not to mention he may never have to take a DNA test at all. Under other circumstances, however, I think this is a fantastic idea for couples who are just dying to know the truth. And I personally don't think there is anything sneaky about it. The child is not a possession of the mother alone - the putative father has just as much rights to taking a cheek swab as he would to changing the diaper on his baby. I think all in all, it is a great idea. But possibly not one that angelia should explore given her unique situation.
-cd

Can't Deal with You.....your suggestion is interesting however H has nothing to do with oc. He of course has seen the oc but has not participated in any parts of its life.

CD: I'm laughing that I have a unique situation. Not laughing at you but just laughing because i think it's a f*****up situation and I'm sure you'd agree with that more! love ya! Anyway, I think I'll hold off like you suggest for now. I keep praying this might be our lucky break.

cd,
if the courts get wind that angelia's husband has had contact with the child and has actually participated in a test, the court may consider that he has "reason" to believe that he is the father.
This is one of the reasons I suggested using fake names. Also, the results are confidential and can only be accessed by the involved party.

What it sounds like to me is that the whole situation rests on the OWs exH. If he has never questioned paternity of the child and is activley involved, angelia has nothing to worry about. However, if OWs exH knows or suspects he may not be the father, there are measures he can take to have his paternity determined and overturned. If he has any form of proof of the A, such as emails or letters or phone messages, that would likely give him "standing" in the courts enough to challenge paternity and request the courts order a DNA test. More and more "paternity fraud", or men who are not the biological father being forced to pay support, is causing noise in the courts and effecting legislation.
All that being said, if he has no proof of the A, or has never denied paternity, angelia is in the clear.

Can't Deal with you....I need a shorter nickname for ya! haha!

Anyway, the court papers sent to my H were also sent to the ow's exH. They said that he was not being set as the father (although legal) and if he chose not to answer the court papers they they would presume that he is not interested in being the child's father.

I really don't know what's gonna happen with this. I pray for any sort of outcome other than my H being the child's father. If the dna is ordered and if he is proven to be the father then we'll have to deal with that.

An affair is a problem enough and this just adds more crap to the process. I went to counseling yesterday and the lady told me that the recovery has several parts but that one of the significant processing points for me and our relationship would be this child....so for now it's on hold.
I truly feel this way.

H has said and has acted before I even knew that he didn't want the oc in his life. He is perfectly okay with letting ow deal with oc. He says just let me know what I have to pay and let me move on with my wife and my family. I do however wonder if there is a dna test that proves him to be the father if he'll change his mind. I know that I couldn't handle that. I couldn't handle the shame, the questions from family/friends, the constant reminder (cs will be enough of a reminder). Just my feelings.

I hate him, yes I said it, for all he's put us through. Surely no piece of @$$ could have been worth all this. (Sorry, don't mean to offend anyone - partially venting). I hate visiting the attorneys, I hate wondering and worrying - and I know worrying won't change any outcome - but I hate it.

Our recovery is way too new to deal with most of my regular feelings much less adding this CRAP to it.

Can't Deal....Thanks for your thoughts. I do know more than anyone what we're up against. I am sure that this poor sap of an ex-H of hers will eventually protest paternity if he has any brains. I wouldn't want to get stuck with cs for some other person's kid either.

Oh well.....that's my life in a nutshell...IT SUCKS!!!!

Angelia

Sorry Angelia, but CD, I think you are off track on your reassurances to Angelia in terms of FL case law. The two main paternity cases to look at here are "Privette" and Daniel v. Daniel." Privette presents arguments against ordering DNA testing when the OC is born into an INTACT M--it lets the bio father off the hook, but this was 1991 and also based on the OC residing in an intact family--it was welfare that went after the bio father, not the OW.

Daniel v Daniel--FL supreme court--argues that the nonbio father--the divorcing H--cannot be forced under FL law to pay CS for his nonbio child. It is not in the "best interest" of the child to have NO paternal CS from anyone, the xH can't be forced, ergo the bio father is responsible.

There is also a very recent (2001) Miami circuit court ruling Ortiz v. someone that makes similar Daniel v arguments--OWs who are divorced from their H DO win CS from the bio father MM--this is why I am not wasting our time and money fighting something we can't win. CD in this case I think you are offering Angelica the wrong advice IMO. I think it will look better to the judge if MM cooperates w/out frivilous litigation to get out of his fiscal duties to his OC. Also, since he paid money to the OW there is probably a paper trail there that will show that he KNOWS it's his OC. Of course do the DNA test first, but don't waste everyone's time and money fighting needlessly is my advice.

Mobe: I'm gonna go cry now! <img border="0" title="" alt="[Frown]" src="images/icons/frown.gif" />

I know and the attorney was very upfront in all of this. We didn't know what to do and in fact, I thought in the beginning that we should just do the dna and be DONE with this crap. I think I need some finality to this for the healing process.

The counselor said to me the other day that most people can adapt to any situation - they just need to know what the situation is.

I can probably move on from the worry if I had some sort of concrete answer.

All the little details of this crap are wearing me down. I am spending way too much energy wondering if h is father or not, could she have been screwing the whole world, was there any evidence of affair, he paid her in cash, blah blah blah...it's killing me. I worry about cs payments and how much, I worry about our kids, I worry, I worry, I worry.

just getting me down!@

Angelia

Mobe,
You are misunderstanding my point. I am not reassuring angelia about the florida laws. I am telling her what some possibilities are according to other cases I have seen in states that adhere to presumption of paternity. I live in Pennsylvania, a state where the presumption of paternity is about two years from being eliminated entirely. Other states hold the husband responsible for a child born during the marriage NO MATTER WHAT. I am not sure where Florida fits in - probably somewhere in the middle of the two extremes. I have never researched presumption of paternity law in Florida specifically, so you're probably accurate in citing cases. However, if angelia's attorney's think it is worth fighting the DNA test, that gives me the indication that there must be laws to support the position. As to frivolous litigation, it is my firm belief that any lawyer who represents a client owes that client a duty to explore and utilize every avenue that may be available. The costs of litigating a DNA test - even if angelia's h is eventually compelled to take it - is FAR, FAR less than the cost of child support measured over 18+ years. It is miniscule in comparison, and the value of such litigation, in my opinion, far outweighs the expenditure. And as to the idea that such a move ties up the court system - I assure you that family court lives and breathes on this stuff. And besides, do you think it is appropriate for anyone to be forced to undergo testing involving bodily fluids WITHOUT a court order dictating such testing? I'll give you an example - and please forgive me if it isn't the greatest example - I am a little tired this evening. What if you slept with a man who later tested positive for the HIV virus. You know that this guy also engaged in sexual activities with other women at or around the time he slept with you. The guy has identified YOU as the cause of his infection, and wants you to pay for all medical costs to treat his illness. As such, he would like to compel you to take an HIV test. Do you submit willingly to giving blood, or do you hire an attorney to defend your legal right to privacy? I know it is not the same situation, and possibly 8is a weak analogy (Hey, I've spent all day with a six-month old child and I'm wiped out) but it's the same kind of thing. Without legal basis, no one in this country can be compelled to submit to medical testing. If ow had not been married at the time, then angelia's husband would have a legal obligation. As it stands, he may not. I say stand up for your legal rights. Just my opinnion. And please, keep in mind that I am taking the position of what I would do if I was representing angelia's h - not what I would do if I was the judge adjudicating the case on merits. It is a wholly different perspective, ya know.

Thanks for your thoughts, mobe. Sounds like you have a good head on your shoulders, and if you have access to the cases you cited, I would love to see them. Chances are that I will never practice in Florida but paternity laws are of great interest to me, and I sure would love to get a peek at them.
-cd

oh, and one more thing. While judges do in fact come down hard on people who try to avoid legal obligations to pay support, the legal obligation has to be firmly established before they can be held accountable for it. As of now, I don't believe any judge would fault angelia's husband for having his attorneys represent him based on the laws of the state. Additionally, in the fantastic world of child support law, it really doesn't matter how much you bow and curtsey - you get stung just the same. I have never seen a judge adjust or reduce child support based on somebody's willingness to play nice. You don't get points for being a nice guy. It's a shame, but absolutely true.
-cd

CD--I don't think they can win, FL supreme court case law is against them in the most recent rulings PLUS lesser court rulings as well. The presumuption here in FL is NOT as strong as it is in some states I would assume.

Also, this IS Angel's H's child afterall--you have to live w/yourself pawning off your own flesh and blood on another man--Angel's H in this case would really be in a morally horrible position--gets this guy's W pregnant and then sticks the wronged H w/CS for a child that isn't even his? Not to mention that Angel's H's actions appear to have broken up that M as well AND the xOW is in dire financial straits.

Angel--I've been crying nonstop for a year now over this but I think YOUR instincts were right--just do the testing and be done w/it. Lawyers make money on cases that drag out--they DON'T make money on cases where everyone settles quickly. I would talk to them abt recent FL rulings that pertain to your situation such as I mentioned. It seems they haven't done their homework--lots of family law attys don't keep up w/recent rulings--mention Ortiz and Daniel to them, they will see that FL reliance on "presumption" is pretty much getting ruled off the books, esp. by Daniel v. Daniel which asserts that a nonbio H CANNOT be forced to pay CS--that leaves the bio dad.

Mobe,
you may be absolutely correct on the caselaw - I don't know. All I can tell you is that angelia's attorneys think this is an appropriate tactic - and they know the laws of the state better than you or I do. I also feel that most attorneys keep pretty well up to date on the latest rulings, especially since most states require continuing education. You'd be a hell of a debate opponent, mobe. I see your point on a moral level, and I don't necessarily disagree completely. But remember - at this point in time, this child is NOT angelia's husband's child by any means other than the ow saying it is. Angelia's husband has not taken a DNA test, and moreover, the marriage of ow and her h could have fallen apart for a number of reasons that have absolutely nothing to do with angelia's h. I understand that you take issue with a man turning his back on his own flesh and blood - as do I, honestly - but there is no way of telling at this point whether or not this child IS his own flesh and blood. We could debate for years on the morality surrounding a father's right to reproductive freedom of choice, but that's really not the issue here.

I still would be very interested to pull up the cases you referred to. If you can provide me with the citations (the page and volume of the case books they appear in) I can pull them up on my Westlaw account and have a look.

As to giving angelia the wrong advice - bear in mind that my opinion is just that - advice that she is free to take or discard as she sees fit. And because I am not a practicing attorney in Florida (or any other state yet) it should not be construed as legal advice. But I stand by the idea that nobody should just roll over and submit to medical testing without a court order. JMO.

warmest,
cd

Looking for CD,

Sorry I haven't been here I wound up getting very sick, But last week i did file for CS in my local county court i have a date in feb, my H knows I did it I think it'a all sinking in , I mean at one point i wanted the OC to get nothing but he made his bed Infact he bought her a bed last year, so now as they say he has to lay in it. I do feel he needs to give cs for oc but when it comes looking for him and we've heard she was in labor last too!!!! but suppossly trying to run from children and youth???? not sure of the whole story but would love to know more supossly she was smoking pot while pregnant and someone(not me) put word into children and youth, if I give you some info about her can you look into it at all or tell me which way to look?????/ She from monroe county, Bartonsville , pa her first name is christine or christina last name something like schockey, schock, i think she was going to pocono medical center but try to go to a hospital in scranton, and heads up would be great!!!

Thank a million

love Jill

ps If the courts say i should get so much could my h tell them he wants to give more????? And would that be less for OC?????

thanks again
Jill