2. FIND OUT WHO IS MOST LIKELY THE BIOLOGICAL FATHER<\/strong><\/p>\n\n\n\nThis is important because you will sue him for:<\/p>\n\n\n\n
(a) a finding that he is the father;<\/p>\n\n\n\n
(b) that he pay back child support;<\/p>\n\n\n\n
(c) that he provide medical insurance<\/p>\n\n\n\n
(d) that he reimburse you for necessities<\/p>\n\n\n\n
3. FIND OUT IF YOUR WIFE TOLD ANYBODY DURING HER PREGNANCY OR AFTER BUT BEFORE YOUR DIVORCE THAT YOU WERE NOT THE FATHER.<\/strong><\/p>\n\n\n\nIn order to sue for fraud you must allege and prove the following:<\/p>\n\n\n\n
(a) she made a statement which<\/p>\n\n\n\n
(b) she knew was false<\/strong><\/p>\n\n\n\n(c) upon which you relied to your detriment.<\/p>\n\n\n\n
Her defense may be that it was just a mistake If you can prove that she knew you weren\u2019t the father before the divorce you have evidence of fraud. In one case the wife had told a friend: “If my husband ever knew who the real father was, he\u2019d kill me.” That was enough to show that she knew her statement was false. She didn\u2019t have to identify at that time who the real father was – only that you weren\u2019t the real father.<\/p>\n\n\n\n
EDUCATE YOUR SELF and YOUR LAWYER<\/strong><\/p>\n\n\n\nResearch the following:<\/strong><\/p>\n\n\n\nDID the court have jurisdiction of a child who was not the issue of the marriage?<\/strong> Issues of jurisdiction can be raised at any time. Black letter law was that a court could not award custody of a child of the marriage to a step-parent as part of a divorce action. Consequently you should be prepared with a legal brief showing that the court had no jurisdiction over the child and therefore could award neither custody or make an order of support. <\/strong><\/p>\n\n\n\nDID the court have jurisdiction to terminate the biological parent\u2019s rights without giving him notice?<\/strong><\/p>\n\n\n\nThis is the flip side of the first point. Some adoptions have been overturned because the father did not consent. Those cases sometimes involved fathers who did not know they had a child.<\/p>\n\n\n\n
DOES the court have jurisdiction to identify the biological father and order him to pay support?<\/strong><\/p>\n\n\n\nGenerally one can bring a paternity action at any time during the child\u2019s majority. Generally one can obtain past child support for a number of years, such as two or three.<\/p>\n\n\n\n
DOES your jurisdiction have a Statute for Necessities?<\/strong><\/p>\n\n\n\nThe statute provides that any person, or institution who has provided necessities to a child may sue both<\/strong> parents for reimbursement. This is often used by hospitals, doctors and dentists, but can be used by drug stores, food stores (for food) and, probably by you if you have furnished necessities. However this statute would probably have a three or six year statute of limitation.<\/p>\n\n\n\nIn Connecticut there was a case in which the divorce court said that father will be responsible for all medical bills. The child went into the Elmcrest Psychiatric Hospital who sued both the mother and the father. The mother claimed no duty because the divorce court had made the father responsible for future bills. The court said too bad. Both are liable notwithstanding the orders of the court.<\/p>\n\n\n\n
DOES your state permit jury trials on fraud cases, contract cases, and if so, does it permit double damage or punitive damages or attorney\u2019s fees in fraud cases?<\/strong><\/p>\n\n\n\nLET’S ASSUME YOU HAVE IDENTIFIED THE REAL FATHER; YOU HAVE EVIDENCE THAT YOUR WIFE LIED ABOUT YOU BEING THE FATHER, AND THAT YOU CAN PROVE THAT YOU ARE NOT THE FATHER.<\/strong><\/p>\n\n\n\nState two or three lawsuits as follows:<\/h3>\n\n\n\n
1. In the divorce court to reopen and set aside the finding of paternity and to establish paternity. Move to implead the biological father in that action. Move for DNA paternity tests of the biological father, mother and child(ren).<\/p>\n\n\n\n
2. In the civil court sue the mother for fraud (or mutual mistake of fact) seeking money damages, and punitive damages.<\/p>\n\n\n\n
3. Bring a suit against the biological father and the mother for necessities and the biological father for past due support.<\/p>\n\n\n\n
4. In the civil action, notice the person who did the DNA testing for a deposition; take the deposition and establish as a matter of fact that you are not the father.<\/p>\n\n\n\n
5. In the civil action, notice the mother for a deposition and ask her who is the father, when she knew and if she told the father.<\/p>\n\n\n\n
6. In the civil action, notice the biological father and see when he was told that he was or might be the father; whether he was having intercourse with the mother, etc.<\/p>\n\n\n\n
DON\u2019T PIECEMEAL THE LITIGATION: START THEM ALL AT ONCE.<\/strong><\/p>\n\n\n\nIF YOU PIECEMEAL, YOU MAY FIND THE DIVORCE COURT MAKING A FINDING THAT YOU ARE THE FATHER WHICH WILL BAR YOU IN THE CIVIL COURT.<\/strong><\/p>\n\n\n\nDO NOT TAKE DEPOSITIONS IN THE FAMILY COURT<\/strong><\/p>\n\n\n\nThe judges will not be friendly in that court, may order you to pay attorneys fees etc. The judges in the civil court can\u2019t order you to pay her fees.<\/p>\n\n\n\n
WHEN YOU HAVE THE EVIDENCE IN THE FORM OF A DEPOSITION ABOUT THE DNA \/ AND MOTHER FILE A MOTION FOR SUMMARY JUDGMENT ATTACHING THE DEPOSITION TO THE MOTION.<\/p>\n\n\n\n
This can be filed in both courts and now the judge will have to look at the evidence and do some soul searching.<\/p>\n\n\n\n
PREPARE FOR BEST INTEREST ARGUMENT IN FAMILY COURT<\/strong><\/p>\n\n\n\nHere is where you may try different approaches. It becomes a strategic planning decision.<\/p>\n\n\n\n
You may, in your motion in the family court, specifically allege the failure to have contact or a relationship; that the child will, for cultural, ethnic, or geographical reasons have a better chance with the biological father than with you. You may document the number of times of missed visitation; the relocation, or other facts to show that the best interest will be serve by having you removed and the other father substituted. He may have more money; more assets; she might get more child support under the guidelines. For medical diagnosis and treatment she may belong to a “favored” population or minority. She may, as a minority be entitled to preferences in hiring, and in education. Think of all the reasons why she would be better off. Make the allegation about best interests.<\/p>\n\n\n\n
Or, if you want to be devious, demand custody and more time and let the mother show that the daughter hates you. It\u2019s a choice.<\/p>\n\n\n\n
I would be interested in your thoughts after you consider this. You may e-mail me at Lkiefer1@hotmail.com<\/a> .<\/p>\n\n\n\nGood luck<\/p>\n\n\n\n
Louis Kiefer<\/em><\/p>\n\n\n\nCopyright (c) 2001 – 2010, Louis Kiefer, Used by Permission<\/p>\n","protected":false},"excerpt":{"rendered":"
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