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SIMPLE LEGAL QUESTION ABOUT DNA TESTING



 
 
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  #1  
Old March 23rd 05, 10:35 PM
b8tovene
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Default SIMPLE LEGAL QUESTION ABOUT DNA TESTING

I will be as brief as possible -

2 months after my son was born, my ex wife left the state [of Arizona]
with my son. She just left. She never came back. Because we were not
married at the time, what she did was completely legal, even though my
son has my last name - even on the birth certificate. We were not
married at the time; therefore the state of Arizona did not recognize
me as the father.

During the course of the subsequent litigation (I had to sue her to
get rights as the father, and establish parental responsibility), she
was asked to sign an affidavit stating that she acknowledged me as the
biological father to my son.

If I find out, through DNA testing, 2 years later, that I am not the
biological father to my son, what legal recourse to I have against her
for swearing in that affidavit that I was the biological father?

Thank you for your input. I appreciate whatever advice you can give -
ahead of time.

Mark

  #2  
Old March 23rd 05, 10:47 PM
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b8tovene wrote:
: During the course of the subsequent litigation (I had to sue her to
: get rights as the father, and establish parental responsibility), she
: was asked to sign an affidavit stating that she acknowledged me as the
: biological father to my son.

: If I find out, through DNA testing, 2 years later, that I am not the
: biological father to my son, what legal recourse to I have against her
: for swearing in that affidavit that I was the biological father?


You cannot afford *not* to consult a good attorney.

b.

  #3  
Old March 24th 05, 12:45 AM
J
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Default

How did your name get on the birth certificate?

  #4  
Old March 24th 05, 01:44 AM
Bob Whiteside
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"b8tovene" wrote in message
...
I will be as brief as possible -

2 months after my son was born, my ex wife left the state [of Arizona]
with my son. She just left. She never came back. Because we were not
married at the time, what she did was completely legal, even though my
son has my last name - even on the birth certificate. We were not
married at the time; therefore the state of Arizona did not recognize
me as the father.

During the course of the subsequent litigation (I had to sue her to
get rights as the father, and establish parental responsibility), she
was asked to sign an affidavit stating that she acknowledged me as the
biological father to my son.

If I find out, through DNA testing, 2 years later, that I am not the
biological father to my son, what legal recourse to I have against her
for swearing in that affidavit that I was the biological father?

Thank you for your input. I appreciate whatever advice you can give -
ahead of time.


You need to discuss the specifics of your case with an attorney who
specializes in Arizona paternity law. The issues in your case involve both
federal and state paternity laws, and you need competent counsel. It sounds
like you sued her to get paternity established so you could exercise
parental rights.

Generally, federal legislation requires the states to allow a parent to
rescind a voluntary acknowledgement of paternity within the earlier of 60
days after filing acknowledgement or the date of a legal proceeding
involving the child. (It sounds like your case would be governed by the
date of the legal proceeding.)

After the 60 days, states may allow challenges to the acknowledgement only
for fraud, duress, or material mistake of fact. (You need to have an
attorney explain the AZ law.) Some states have a one year window to re-open
paternity cases for genetic testing if parentage was established without
testing.

In my state the one year window was adopted into law because the state
recognized a high default rate in its administrative paternity proceedings
and the significant numbers of parents who sign joint declarations of
paternity because of relationship issues, even knowing the male signatory is
not the father. (Read the mother lied about the child's father.)

What your attorney will have to do for you is get you the opportunity to
have the DNA test, have the test recognized as admissible evidence, prove
the signing of the affidavit was a fraudulent act, and overcome the 60 days
and/or one year window limitation for a paternity challenge. A lot of what
an attorney can do for you is dependent on state law and case law. The one
year rule may be the stumbling block in your case since any challenge would
be outside the statutory limit for making the challenge.


  #5  
Old March 24th 05, 02:25 AM
b8tovene
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Before we left the hospital we met with the medical records department
and we both signed the documentation, and produced drivers licenses
etc...

Not sure why you would ask that?


On 23 Mar 2005 15:45:28 -0800, "J" wrote:

How did your name get on the birth certificate?


  #6  
Old March 24th 05, 02:39 AM
Bob Whiteside
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"b8tovene" wrote in message
...
Before we left the hospital we met with the medical records department
and we both signed the documentation, and produced drivers licenses
etc...

Not sure why you would ask that?


Because what you signed was a Joint Declaration of Paternity, a document
voluntarily acknowledging your paternity without using a DNA test.

And the significance of signing this document at the hospital changes the
advise I offered below. The statutory timeframe for when you can challenge
paternity started when you signed this document, not when you had a court
hearing sometime later.


  #7  
Old March 24th 05, 03:02 AM
b8tovene
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Default

Bob,

It is quit obvious from the vernacular of this post you are an
attorney. To that end -

Thank you so very much for taking the time to provide a bit of a road
map for me to proceed.

I am very grateful. Thank you again.

The 'X' factor in all of this is that my son, the mother, and I now
live in Minnesota. Jurisdiction has yet to be moved to Minnesota.

It sounds like the first step is to transfer everything to Minnesota.

I cannot, for the life of me believe that there might be a time limit
on DNA testing in light of a possible fraudulent acknowledgement of
parentage by the mother.

It doesn't take 2 minutes into a legal battle for parental rights to
see the cards stacked against the father. I thought, at one time, this
was simply psychobabble, after my experience, I now know better.

The unspoken underpinning to all of this is, after almost 3 years, my
son is as much a part of my heart - regardless of whether or not he is
my biological son.



Mark



On Thu, 24 Mar 2005 00:44:24 GMT, "Bob Whiteside"
wrote:


"b8tovene" wrote in message
.. .
I will be as brief as possible -

2 months after my son was born, my ex wife left the state [of Arizona]
with my son. She just left. She never came back. Because we were not
married at the time, what she did was completely legal, even though my
son has my last name - even on the birth certificate. We were not
married at the time; therefore the state of Arizona did not recognize
me as the father.

During the course of the subsequent litigation (I had to sue her to
get rights as the father, and establish parental responsibility), she
was asked to sign an affidavit stating that she acknowledged me as the
biological father to my son.

If I find out, through DNA testing, 2 years later, that I am not the
biological father to my son, what legal recourse to I have against her
for swearing in that affidavit that I was the biological father?

Thank you for your input. I appreciate whatever advice you can give -
ahead of time.


You need to discuss the specifics of your case with an attorney who
specializes in Arizona paternity law. The issues in your case involve both
federal and state paternity laws, and you need competent counsel. It sounds
like you sued her to get paternity established so you could exercise
parental rights.

Generally, federal legislation requires the states to allow a parent to
rescind a voluntary acknowledgement of paternity within the earlier of 60
days after filing acknowledgement or the date of a legal proceeding
involving the child. (It sounds like your case would be governed by the
date of the legal proceeding.)

After the 60 days, states may allow challenges to the acknowledgement only
for fraud, duress, or material mistake of fact. (You need to have an
attorney explain the AZ law.) Some states have a one year window to re-open
paternity cases for genetic testing if parentage was established without
testing.

In my state the one year window was adopted into law because the state
recognized a high default rate in its administrative paternity proceedings
and the significant numbers of parents who sign joint declarations of
paternity because of relationship issues, even knowing the male signatory is
not the father. (Read the mother lied about the child's father.)

What your attorney will have to do for you is get you the opportunity to
have the DNA test, have the test recognized as admissible evidence, prove
the signing of the affidavit was a fraudulent act, and overcome the 60 days
and/or one year window limitation for a paternity challenge. A lot of what
an attorney can do for you is dependent on state law and case law. The one
year rule may be the stumbling block in your case since any challenge would
be outside the statutory limit for making the challenge.


  #8  
Old March 24th 05, 03:36 AM
Bob Whiteside
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Posts: n/a
Default


"b8tovene" wrote in message
...
Bob,

It is quit obvious from the vernacular of this post you are an
attorney. To that end -


I am not an attorney. I am a father's rights advocate who tries to
understand the system so I can help fight it! It's the old - Know thy enemy
thingy!


Thank you so very much for taking the time to provide a bit of a road
map for me to proceed.

I am very grateful. Thank you again.


You are welcome.


The 'X' factor in all of this is that my son, the mother, and I now
live in Minnesota. Jurisdiction has yet to be moved to Minnesota.

It sounds like the first step is to transfer everything to Minnesota.

I cannot, for the life of me believe that there might be a time limit
on DNA testing in light of a possible fraudulent acknowledgement of
parentage by the mother.


Under the law, there is no such thing as Paternity Fraud. Getting the law
to recognize paternity fraud as a crime is one of the major objectives of
father's rights groups.


It doesn't take 2 minutes into a legal battle for parental rights to
see the cards stacked against the father. I thought, at one time, this
was simply psychobabble, after my experience, I now know better.

The unspoken underpinning to all of this is, after almost 3 years, my
son is as much a part of my heart - regardless of whether or not he is
my biological son.


Then don't even suggest a DNA test. The results of the test could change
how you view this young man. In some respects, not knowing definitively you
are the father or not will make many decisions you make easier.

BTW - There is lots of case law suggesting men who have acted in the role of
father cannot use the results of a DNA test to no longer be considered the
child's psychological father if a DNA test proves they are not the
biological father. That is why the laws need to be changed. Mothers are
legally protected from any responsibility for making false allegations of a
child's father, yet fathers who are duped into believing they are the
child's father are given no emotional or financial relief for circumstances
resulting from a woman's false swearing.


  #9  
Old March 24th 05, 04:00 PM
J
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Default

Sounds like you will have to fight an uphill battle. Bob is absolutely
correct. You need COMPOTENT counsel. Do not try to go cheap here,
fradulent CS will cost you a lot more. You might get lucky and she
might not try to fight it. Try to get her to sign a document (written
by your attorney) absolving you of all paternal rights and priveledges.
You should be able to do this, if she wants to fight, Bob gave good
advice.

 




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