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New Direction Family Law layers and staff discuss the complexities around parentage. They cover the process of establishing and disestablishing parentage, the legal implications, and the need for paternity actions. The team also explores issues related to legitimation actions, the legal challenges of changing a child's surname, and the complications that arise within same-sex parent families. Tune in for an informative discussion about the legal intricacies of parentage and the importance of having an attorney navigate these complicated matters.
00:00 Introduction and Team Introduction
00:36 Understanding Parentage: Establishing and Disestablishing
01:10 Affidavit of Parentage: Hospital Procedures
01:52 Paternity Tests and Legal Actions
02:43 Legitimation Actions: Replacing the Wrong Dad
03:36 Legal Implications of Birth Certificates
05:30 Disestablishment of Paternity: Legal Steps
07:41 Changing the Child's Surname
10:52 Complexities in Same-Sex Parentage
12:26 Conclusion and Final Thoughts
------ To contact us visit https://newdirectionfamilylaw.com/contact-us-today/
00:00 Introduction and Team Introduction
00:36 Understanding Parentage: Establishing and Disestablishing
01:10 Affidavit of Parentage: Hospital Procedures
01:52 Paternity Tests and Legal Actions
02:43 Legitimation Actions: Replacing the Wrong Dad
03:36 Legal Implications of Birth Certificates
05:30 Disestablishment of Paternity: Legal Steps
07:41 Changing the Child's Surname
10:52 Complexities in Same-Sex Parentage
12:26 Conclusion and Final Thoughts
------ To contact us visit https://newdirectionfamilylaw.com/contact-us-today/
Creators and Guests
Host
Cameron Heinsohn
Marketing & Business Development Manager
Host
What is Ex-it Strategy?
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
78 - Parentage
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Cameron: [00:00:00] Hi everyone, I'm Cameron. I'm the marketing and business development manager at New Direction Family Law and, um, in Elizabeth's seat today.
She's got trial stuff going on, but I've got, uh, Sarah, who everybody knows. And then Matt is with us too. So you guys wanna say hi? Hi.
Matt: Hello. Yeah,
Cameron: we're, we're talking about something that we get a lot of phone calls about, um, and there's. Kind of a lot of questions surrounding this sometimes, and it's, uh.
Very case by case, individual kind of topic, but it's a parentage in general is something that we get a lot of questions about and, um, establishing it or disestablishing it and what you [00:01:00] can kind of do.
Sarah: Who's the daddy? So most time you know who the mommy is. Um, yeah, the gives, the, gives birth. So, I mean, me and my husband were not married when.
I had our child. So when I was in the hospital, some lady tracked us down and was like, Hey, sign this affidavit of parentage and you sign it. But you don't, I mean, I know what it is 'cause I see 'em all the time as an attorney, right? It's you then it's notarized. It's saying like, Hey, this is your, your affirming, this is your child, this is the biological father, whatever.
Um, so that will happen in the hospital if another man is there. If a man's not there, it's up to the mom to put. Or the other partner to put the name on the birth certificate.
Matt: Mm-hmm.
Sarah: So up to the mom and sometimes they put the right name, sometimes they don't put the right name. Sometimes they put no name.
So how that affects down the line usually comes about with child support in most cases. Yeah. So then you, you know, mom goes to child support enforcement and they're like, uh, you know, Bob's the dad and Bob's like, I ain't no dad. [00:02:00] And it's like, prove it. And then so child support enforcement or the child support judge will be like, okay, well let's do a paternity.
Action. I'm gonna do a court order that says you have to go get your DNA tested to show a paternity. And then it's like a Jerry Springer show. Like you are not the father. You're not the father. Or like my most recent one, he was the father and his wife that was wife during was distraught in the courtroom and it was very much Jerry Springer.
Ooh. And I felt like, I felt like reacting to him. Like, oh shit. His father, he swerving down to me that he wasn't. That was a sad case, but, um, it doesn't matter. There's issues with paternity parentage. Yeah. And what to do about it. Um, legitimation, have you done legitimation actions? I
Matt: have not.
Sarah: I've done quite a few legitimation.
So that comes from the real dad bio dad getting either on the birth certificate or in a lot of cases replacing the wrong dad on the birth certificate. Right. So that action has to get started by the, the actual biological father. [00:03:00] And you actually, you, you sue. It's a special proceeding. You put mom on the petition and you put the child on the petition.
You have to serve them. And then you do the D-N-D-N-A testing or have some kind of proof that you're the biological father. And then right special proceedings clerk will have an order. 'cause it doesn't go in front of a judge, just goes in front of the clerk, they sign off of it. And then you get to the vital records.
And vital records will then change the birth certificate. And then everything comes after child
Cameron: support and like custody. Mm-hmm. And yeah. All the normal stuff. Yeah. Custody. Yeah. Yeah,
Sarah: for sure.
Cameron: Because usually if they are trying to get on the birth certificate, that's like, I wanna see my kid, I wanna see
Sarah: my kid.
I wanna be on the birth certificate. Yeah. And how that affects a child, like even if it's not. So, so what? You're not in the birth certificate, there's not another name on it. Well, it actually affects your ability to like pass down inheritance if you don't have a will, right? Mm-hmm. So there, there's certain legal things that do follow with that.
Um, but in mo in some cases, if they don't have the money to hire an attorney to do it, and it can be kind of complicated and I'm like, if you have [00:04:00] custody, you're okay. Like that shows you're the father a lot of times having a custody order. Right. But it still is beneficial to have like your name on the birth certificate.
Cameron: Yeah.
Sarah: I would think so. I mean, it's
Matt: wild to me as an attorney that you can just put somebody, some dude's name on the, uh, person. You can put
Sarah: whatever. Yes. You
Matt: could put LeBron James on there, right? Or Yep. Uh, Jeff Bezos.
Sarah: Yeah. But they won't be there to sign the, they will not be affidavit
Matt: You don't think they would?
No,
Sarah: but I mean, I've had cases where some other dude is and they sign it, but they're not the biological, they don't have the guy signs it,
Matt: right. Is that what happens? Yeah. Mm-hmm. Yeah. I've had some cases with multiple dudes in the. Delivery room. Um,
Sarah: like he's a daddy now. Well, okay, well down the line we all break up.
And you want the real father on there, like that's gonna be a little different. Yeah.
Matt: Yeah.
Sarah: And, and that's a whole disestablishment of
Matt: parenting. But they get you, they get you at the hospital. They're, oh my God, we were in the nicu son. This, you know, you have to sign this. I
Sarah: mean, my, my like, baby was okay and the nicu, like she was only there for 24 hours.
The
Matt: rest,
Sarah: but they just like track you
Matt: [00:05:00] down. Yeah. Those nurses. Or whatever. They're, I was offended. Like my hormones
Sarah: are raging. Like, oh, undue influence.
Matt: Yeah. What
Sarah: the fuck do you want? I got things going on over here. Yeah. Get outta here. Are you crazy? Yep. Oh, sign it. Go away. Yeah. And I know what it is.
Right, right. Yeah. So plenty people who don't, and they're probably like, whatever. Just sign it. Yeah. So then to like get to get the dad's name off and you're the mom, so you don't have another man to come legitimize, the biological father's not coming to legitimize, but you want the wrong dad off. That's when you have to do the disestablishment of paternity parentage.
So that's the petition to the court. You have to show what fraud duress. You have 60 days for a Takeback Mutual
Matt: mistake, maybe. Yeah. You have
Sarah: 60 days. For a takeback, you have to do it
Cameron: within 60 days to Disestablish for just whatever,
Sarah: like a child support order or just someone saying they're not a DNA test.
Mm. After 60 days, you have to show there's some kind of like fraud or duress, why you signed this affidavit. Oh, I see. Mm-hmm. [00:06:00] And then you have to get the court order for it, and then you can get vital records to change the birth certificate. You think like just going to change a birth certificate is easy, but Yeah, you go the vinyl records and they're like, no, you need to talk to an attorney.
Yeah. That's all it really says to you. You think there'd be some forms to fill out if everyone agrees, but it's not, you actually need a court order. Oh. In all these cases.
Cameron: So you do really kinda have to have an attorney. Yes. Not have, well, you really
Matt: should. It's, it's one situation. You want an attorney.
Mm-hmm.
Sarah: Yeah. It can be complicated. Yeah. Even for attorneys, it can be complicated.
Matt: I think so.
Sarah: Yeah.
Matt: [00:07:00] Nobody wants to let a dad off the birth certificate. In general, you know, the child support attorneys don't,
Sarah: or mom, mommy doesn't want, moms probably don't,
Matt: right? Doesn't want
Sarah: dad's name on there for whatever reason.
Um, and so another thing that comes up with the legitimation actions is changing the surname of the child. Okay? So if mom didn't put Dad on the birth certificate and then gave baby her last name. Now that I'm talking about this, I feel like it's pretty sexist.
Matt: Keep going.
Sarah: Well, yeah. So then the dad comes and legitimizes the [00:08:00] child and gets his name on the birth certificate, and he can actually ask the court to order that the child gets his last name.
I've had that happen in multiple, in like every case now I'm mad about it.
Matt: Well, you're two for two on, uh, yeah. I'm winning, but I don't like it. Sexist origins of the law. Yeah.
Sarah: Our last episode or whatever word, did these come out? The one about the criminal conversation, alienation, affection. Yeah. Didn't like that one property?
I don't like this one because what, why can't the kid have the woman's last name? We don't write the laws. Y'all that listen, your legislators do. So if you get really mad about this like I do, all of a sudden I'm fired up. Let's go change that last name. Law. Yeah.
Cameron: Yes. Go vote.
Sarah: Yeah.
I don't know. Never really thought about it because my guy, my client's always been the dad, so I'm just like, yeah. Let's get your last name on there. Huh? Let's change that kid's last name to yours. You're the dad, so the court can order that it be changed. Mm-hmm.
Cameron: Like that. You must change the last name.
Yep. No
Sarah: matter the age
Cameron: of the
Sarah: child because the petitioner legitimation person is the one asking for it. So they [00:09:00] ask for the name to be on the, for them to be listed as a father in the birth certificate and for the kids' surname to be their, their name. And then they reissue a whole new birth certificate.
Cameron: Oh, wow. Mm-hmm. And like, your name just changed like that. That's it. Yeah.
Matt: Mm-hmm.
Cameron: That'd be weird if it was like, you know, if I'm like old enough to be able to spell my name. Mm-hmm. Well, they take things
Sarah: into consideration. So I think that would be one of the factors they take into consideration with changing a name.
Right. Like, have you been in school and like, but if it's like a child under five. Yeah. Interesting. Yeah. Things you don't think about.
Cameron: Yeah, definitely not. There's like, like you were saying, there's just like a lot of like little nuances it seems like to it, and so. Talk to an attorney. Yeah, if you've got like something like this going on.
'cause for sure there's things that I mean
Sarah: probably haven't thought about and I know like hormones are like raging and you just pushed out a baby. But like think twice before you put anyone random person's name on the birth certificate. Can [00:10:00] you,
Cameron: from like the other side of things, like can you leave the birth certificate blank and then go back later and put something on it?
Do you still have to get it changed? Through
Sarah: a court
Cameron: order, but you get the 60 days to like kind of automatically like, oh, I couldn't remember who the dad was and all
Sarah: of a sudden I don didn't have a baby brain anymore. I don't know a hundred percent because I having a think about it from that standpoint.
Yeah, but I think you generally, if you leave it blank, you're still leaving it blank within 60 days. Okay. There's a reason. Right, right. Yeah. But then when you go file for child support, then you're like, Ugh. Now you need a name on there. But I think some people think they can get away with like. Who has the money right now?
That's the daddy. Mm-hmm. Right. But child support enforcement and judges, they'll order a paternity test No problem.
Cameron: Yeah. Don't play with your
Sarah: kid's
Cameron: last
Sarah: name. Yeah. I mean, or dad.
Matt: Yeah. Or who their dad is. So, and
Sarah: now I'm like, something I haven't stepped into or had the, an experience with would be same, same sex couples in this situation.
Mm-hmm. But I would [00:11:00] think it would work the same way, but No, certainly they're married. Well they're married. They're married. They'll be there together,
Matt: right? Yeah. But in theory, I don't know how that works though.
Sarah: Yeah. Well it depends on if they still love this person. They would list their name. Yeah.
Which, I'm trying to think. Birth certificates now the parent one and parent two is still mother and father wasn't,
Matt: wasn't there this, you know, that big, like a case with, it was like Judge Worley maybe like five years ago with. All this, these things. The same sex partner did for the other partner that was pregnant before the baby was born, like going to visits and ultrasounds.
Was it a
Sarah: child support case?
Matt: It was like a custody case actually. So that person was trying to get custody rights. It was not a child support case.
Sarah: Well they, the most recent in this kind of like area is like child support that one of the same sex parents, I think there's two women. Got shared custody, but she refused to pay child support and then the child support went to the court of appeals and they're like, yeah, she doesn't need to pay [00:12:00] child support.
'cause the statute as written is biological father.
Matt: Oh, really?
Sarah: So she's off the hook even though she gets custody.
Matt: Wow. Okay.
Cameron: So by that definition or Right, like. You go after the sperm donor.
Sarah: It depends on if you have a contract with your sperm donor. Yeah. Which you really should as a sperm donor look into.
So we're really, well, it's still on topic here for sure. Sperm. Yeah. Um,
Cameron: but we do, we, we should dive into this though, like the whole, like the. Same sex and adoptive parent, like, you know? Yeah. It's like complex. Yeah. There, because there's a lot there to talk about. I read
a
Matt: bunch before we dive into it. Yeah.
Because that, it's a lot.
Sarah: It's a lot. And it's constantly changing and evolving. Mm-hmm. Yeah. Uh, honestly, not quick enough though.
Matt: No.
Sarah: Um. 'cause you run into these real life. I mean, you, you tell that story to anybody and they're like, well, that doesn't make sense. Like, this person is suing her for custody and wants custody, but is refusing to pay child support.
Mm-hmm. [00:13:00] So, on one hand you're saying, I'm the, I'm not the biological father, but I am a parent to this child. I should have custody. And then Whoa, whoa, whoa, whoa. Not so fast. Mm. I'm not a, like, I'm not a money parent to this child.
Matt: Yeah. There shouldn't be a class A money Parent class. Yeah, just a parent, parent class.
Yeah. Like DN class could eat it too. Be same class. Yeah.
Cameron: Yeah. Like if you're, yes. Claiming that you have a right to see this child, then you also have a responsibility to, if you're
Matt: claiming the privileges you, you know, should be claiming the obligations as well. Exactly.
Cameron: Yep.
Matt: Yeah,
Cameron: I agree. Yeah. Ain't that some shit?
[00:14:00]