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Minnesota - Presumed legal father vs. Biological dad - Visitation

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Sirdouglasb12

Junior Member
Minnesota

I would like some advice concerning my situation. We are divorcing. My most desired outcome would be to have a liberal visitation schedule put in the divorce decree and recognizing the biological father for the purposes of getting him to pay child support. If I need to fight to maintain my status of being presumed legal father to continue my relationship with my son, even if that means paying child support, I can accept that as my second choice.


Here is an outline of our marriage:

Douglas B. – me. Age 42

Erin A. B. – wife Age 31

Tre D. B. – son Age 4



Married on May 21, 2005 , after being best friends for 4 years.

Separated on October 28, 2005 .

Began working on reconciling in December 2005

Wife got pregnant in December 2005

January 2006, we got back together as a couple.

August 1, 2006 , our son, Tre, was born.

December 15, 2009 wife began an affair and told me she wanted a divorce.

January 7, 2010 wife took out an OFP against me.

January 2010, wife demanded a paternity test.

January 2010, A Guardian Ad Litem was appointed.

February 1, 2010 , wife dropped the OFP and also signed a statement saying that it was without merit or justification.

February 1, 2010 we signed custody arrangement schedule the we drew up between the two of us that outlined several issues, including a set visitation schedule. The agreement clearly states that we agree to keep this schedule through and after our divorce. It also clearly states that we will keep this schedule regardless of the outcome of any paternity test.

March 2010, paternity test shows that I am NOT the biological father.

At present, we are still separated and are trying to negotiate our divorce without involving attorneys.


RELEVANT ISSUES

I am the only father my son has ever known. I had a vasectomy reversed just so I could have a child. I have no other children. I strongly want to continue my relationship with my son.

I was aware that there was at least a small chance that I may not be the biological Dad as soon as it was learned that Erin was pregnant.

I live less than 30 miles away from my wife.

Wife wants sole physical and legal custody.

We have been mostly successful in coming to terms with everything other than the issue of Tre.

Wife claims that the (presumed) biological father wants to begin a relationship with his son. Bio dad is NOT the person she is having the affair with.

The presumed Bio dad is apparently ready to sign a recognition of parentage form without having a DNA test done to prove paternity.

Both wife and I want to put a set visitation schedule in the divorce decree. She would also like the divorce decree to recognize the presumed Bio dad and have my name removed from Tre’s birth certificate. This would remove my obligation for child support and allow the county to pursue bio dad.

We are in disagreement on the visitation schedule. I want more time, she wants less put in.

She is threatening to bring the (presumed) Bio Dad in to challenge paternity if I don’t agree with her demands. She has also threatened that if I “force” her into that, she will deny me all visitation with my son.

The G.A.L. report did not go in my favor. I believe I have legitimate grounds to question the quality of the G.A.L. report. The G.A.L. did not contact any members of my family, who we lived next door to within the 2 years preceding the appointment of the G.A.L. Additionally, because I was concerned about the mental stability of my wife prior to the OFP being taken out, I began making surreptitious audio recordings of our conversations. I offered the G.A.L. full access to these recordings so she would be able to know what events truly happened. She refused to listen to any of them.

************************************************** *******
My soon to be ex-wife is really trying to pressure me to hurry up and sign these divorce papers. She is hounding me daily, multiple times during the day. I have just started a new job that does not allow me the option of leaving during the day to consult an attorney. (They are EXTREMELY strict about attendance) If anyone would like, I can send you via e-mail .PDF copies of both the G.A.L. report and also the custody agreement that we had signed.
 
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WittyUserName

Senior Member
I would first advise you to edit that post to remove full names. You are courting disaster...seriously. Initials/pseudonyms are fine; even preferable.
 

Proserpina

Senior Member
First, edit your post and remove the names.


Second...no. That's not how it works.

You don't get to be Visitation Daddy while Other Daddy pays child support - the child has ONE legal father, you're it, and as such you have the rights and responsibilities of being father including financially supporting your son.


In a nutshell.

However, your wife and the biological father cannot disestablish your paternity during a divorce proceeding in MN, since you've been the child's legal father for four years.

If it was possible though this would mean you have no rights or responsibilities to your son; you would effectively no longer have a son.

I strongly suggest you DO find a local attorney ASAP.

ETA: You secretly recorded your wife's conversations? Do you know that's a crime?
 
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Sirdouglasb12

Junior Member
First, edit your post and remove the names.


-----------------

ETA: You secretly recorded your wife's conversations? Do you know that's a crime?

Thanks for the suggestion to remove the names. I have already done that.

As to the recording - MN has a one party consent rule. If *I* knew the recordings were taking place, I do not need to inform the other person of that fact. These would be/are legally admissible.
 

Proserpina

Senior Member
Thanks for the suggestion to remove the names. I have already done that.

As to the recording - MN has a one party consent rule. If *I* knew the recordings were taking place, I do not need to inform the other person of that fact. These would be/are legally admissible.

If these are telephone conversations - yeap. I may have jumped the gun a little bit there.

However, if you've been recording face-to-face conversations, that's a whole different animal.

That aside though - as you were told in another thread, it's too late for paternity to be disestablished.
 

Sirdouglasb12

Junior Member
That aside though - as you were told in another thread, it's too late for paternity to be disestablished.
Please explain what it means when you say that it is too late for paternity to be disestablished. If I understand correctly, you are implying that it is impossible to have my status as my boy's father removed.

If I am understanding that correctly, I would respectfully question that assertion. I have been told that if the presumed biological dad chooses to fight to have him recognized, I could very well lose the relationship I have with my son.
 

Proserpina

Senior Member
Please explain what it means when you say that it is too late for paternity to be disestablished. If I understand correctly, you are implying that it is impossible to have my status as my boy's father removed.

If I am understanding that correctly, I would respectfully question that assertion. I have been told that if the presumed biological dad chooses to fight to have him recognized, I could very well lose the relationship I have with my son.


Did you read the statute that OhioGal posted in your previous thread?

:confused:

It quite clearly spells out the circumstances and time constraints.

Alternatively, by all means run the situation - as you were again advised in a previous thread - by an attorney who may guide you further.
 

Sirdouglasb12

Junior Member
I'm not sure what you are referring to when you ask if I read a statute. "OhioGal" has not posted a reply to this thread that I have seen. I hit the refresh button twice and searched the page for "ohiogal" just to be sure, and the only instance of it showing up was in your post.
 

Artemis_ofthe_Hunt

Senior Member
I'm not sure what you are referring to when you ask if I read a statute. "OhioGal" has not posted a reply to this thread that I have seen. I hit the refresh button twice and searched the page for "ohiogal" just to be sure, and the only instance of it showing up was in your post.
:rolleyes:

https://forum.freeadvice.com/child-custody-visitation-37/third-party-visitation-507046.html
Did you read the statute that OhioGal posted in your previous thread?
 

Sirdouglasb12

Junior Member
Thank you for reminding me of OhioGal's post. I did check out that statue she was referring too. It read:

§ 257.57. Determination of Father and Child Relationship; Who May Bring Action; When Action May Be Brought.

Subdivision 1.Actions under section 257.55, subdivision 1, paragraph (a), (b), or (c).

A child, the child's biological mother, or a man presumed to be the child's father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action:

(a) at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c); or

(b) for the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c), only if the action is brought within two years after the person bringing the action has reason to believe that the presumed father is not the father of the child, but in no event later than three years after the child's birth. However, if the presumed father was divorced from the child's mother and if, on or before the 280th day after the judgment and decree of divorce or dissolution became final, he did not know that the child was born during the marriage or within 280 days after the marriage was terminated, the action is not barred until one year after the child reaches the age of majority or one year after the presumed father knows or reasonably should have known of the birth of the child, whichever is earlier. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.



What confuses me is the NEXT section under the same statute which reads:


Subd. 2.Rebuttal.

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.



***IF**** the presumed bio dad obtains a paternity test that shows he is in fact the biological father, doesn't the right of rebuttal kick in, regardless of the age of the child?
 

cyjeff

Senior Member
Thank you for reminding me of OhioGal's post. I did check out that statue she was referring too. It read:

§ 257.57. Determination of Father and Child Relationship; Who May Bring Action; When Action May Be Brought.

Subdivision 1.Actions under section 257.55, subdivision 1, paragraph (a), (b), or (c).

A child, the child's biological mother, or a man presumed to be the child's father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action:

(a) at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c); or

(b) for the purpose of declaring the nonexistence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c), only if the action is brought within two years after the person bringing the action has reason to believe that the presumed father is not the father of the child, but in no event later than three years after the child's birth. However, if the presumed father was divorced from the child's mother and if, on or before the 280th day after the judgment and decree of divorce or dissolution became final, he did not know that the child was born during the marriage or within 280 days after the marriage was terminated, the action is not barred until one year after the child reaches the age of majority or one year after the presumed father knows or reasonably should have known of the birth of the child, whichever is earlier. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.



What confuses me is the NEXT section under the same statute which reads:


Subd. 2.Rebuttal.

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.



***IF**** the presumed bio dad obtains a paternity test that shows he is in fact the biological father, doesn't the right of rebuttal kick in, regardless of the age of the child?
Read this part VERY slowly...

but in no event later than three years after the child's birth
 

stealth2

Under the Radar Member
As to the recording - MN has a one party consent rule. If *I* knew the recordings were taking place, I do not need to inform the other person of that fact. These would be/are legally admissible.
Actually, all it means is that the recordings were not illegally obtained. That does NOT mean they are admissible in court. THAT is something that would be determined by the judge.
 

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