Posts Tagged ‘Parental Rights’

Paternity

October 27, 2009

I am a father. There is no denying it. There is no getting away from it. It defines who I am.

I am a Daddy!

In fact, I have been a daddy longer than I have been anything else. OK, yes, I have been alive longer than I have been a daddy…I just don’t remember a “before” time!

And, YES, I have not even been married longer than I have been a daddy. (Incidentally, I have three gorgeous daughters, grown and, thankfully (forgive me girls:), out of the house.

I share my bona fides with you because of a client who called me two weeks ago. He too is a daddy. His life has taken a different course than mine. Some might question his parenting skills…but, I wont.

Let me tell you his story…

John (of course this isn’t his real name!) met a young lady, fell for her, moved in with her, and had a baby with her. Just prior to the birth of the child she thought it appropriate to finally tell him that she was still married to a guy she hadn’t seen for a while. She also indicated that she would “take care of it.”

This wouldn’t be much of a story if I didn’t mention to you that not only did she NOT take care of it but John had another child with her!

Here in Massachusetts if a child is born while the mom is still married to someone else, the husband is on the birth certificate as the father. Certainly John, my client, should have insisted that she get the divorce. Certainly John should have insisted that the issue of paternity be taken care of directly after the birth of the first child. Certainly John should have done things differently.

But he didn’t.

Now he has a problem.

John and the mother of the children have split up. She will not let him near the children…his children.

Did I mention that I am a daddy? I couldn’t even imagine someone trying to tell me that I couldn’t see or talk to my kids. But John, who made choices in hindsight that he should not have made, has no legal standing to insist he see his kids. As far as the law is concerned, they are not his children. In a very real sense, I know his pain. It is this pain that I responded to when he called.

Until John is adjudicated the father of these children he is just another guy. People don’t like to discuss paternity suits in polite society. Yet in situations such as the one I have just written about, zealous advocacy takes on a new meaning, one soaked in desperation and fueled by a fathers love.

I am a daddy… I understand John.

Can I Move My Children Out-of-State?

October 1, 2009

I was watching one of the new seasons television shows the other night. “Lie to Me” is one of those fast paced, science based, programs that I find irresistible. I also have a hard time leaving my work at the office.

Why? Seems that the protagonist on the program is divorced. He and his ex have one child that appears to be a teenager. The mother wants to start a new business – a law practice! – out-of-state. She simply tells her ex, the father of the child, that she is taking their daughter with her.

Can she?

Before I answer this question let me make just one change in the scenario (this is, after all, MY blog:)  – let’s assume that the child is in grade school and not a teenager who would have more say in the matter. So, can a custodial parent simply tell the other parent that he/she is taking the child to live in another state?

NO!

At least not without the courts approval. Unless a separation agreement states terms otherwise, one parent cannot make up the terms of the parenting plan on their own.

There are circumstances under which a court will allow the custodial parent to move away. However, without a showing that the move is justified, the court will not allow it.

The moving party has a two pronged burden of, (1) proving a good faith reason for the move, and (2) that the move will not harm the child. So if one parent wants to take the child out of state he/she should also have a plan for visitation. This is a prima facie case: that is, evidence, if un-rebutted, would sustain a judgment in proponents favor. In our “Lie to Me” scenario, the mother would have to tell the court why this is a good idea. However, the burden then shifts to the other parent to produce evidence, not just that visitation will change, but that the change will negatively affect the child. If the father, in our scenario, does not produce this evidence or, worse yet, doesn’t show up for the hearing, the court will rule that the custodial parent may take the child to a distant state.

These are always highly charged issues where the emotions of the parents can interfere with a clear-eyed evaluation of the needs of the child. In ALL cases, what each parent and the attorneys representing those parents MUST keep in mind is simply this: the best interests of the child must always be the primary focus and consideration of any and all actions taken and or contemplated by the parents!


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