who will get custody: husband or sperm donor ?

[rmet4nzkx]

Well, Kalvin. I did warn you didn't I?

You can't mess with Mother Nature!
or
Measure once, measure twice, measure thrice, cut once!

 

[LdiJ]

Are you sure, I thought she lost that one, but could not find an online reference to the episode. In this case the bio dad does have standing.

Yeah...I am sure...I remember that episode well...the judge upheld Eleanor's position based on contract law vs family law. It looked like she was going to lose...but in the end dad did. The judge ruled that they had a legally binding contract.

Its not impossible that a judge in this particular situation could come to the same conclusion. I am familiar with a handful of cases (across the country) where a bio-dad in a similar situation was shut out based on contract law....even when it didn't go through a doctor/clinic.

The one that sticks in my mind the most was one that took place in FL. A gay man provided sperm to a lebian couple on the basis of no involvement and then changed his mind later. The trial court judge wouldn't give him any parental rights but did give him visitation rights. The FL Supreme Court later overturned the visitation rights.

Of course we are talking about two different states here...but both states are similarly "progressive".

 

[Rushia]

You can't mess with Mother Nature!
or
Measure once, measure twice, measure thrice, cut once!

Well he shouldn't have tried to play a game and then beg me to delete my posts should he? I hate being played with and I haven't been in a good mood the last couple of days. I hurt my back (I don't even know how I did it), I can barely move, hell I could barely pick up my 1 yr old niece today. I wasn't inclined to be nice to the guy.

 

[rmet4nzkx]

Yeah...I am sure...I remember that episode well...the judge upheld Eleanor's position based on contract law vs family law. It looked like she was going to lose...but in the end dad did. The judge ruled that they had a legally binding contract.

Its not impossible that a judge in this particular situation could come to the same conclusion. I am familiar with a handful of cases (across the country) where a bio-dad in a similar situation was shut out based on contract law....even when it didn't go through a doctor/clinic.

The one that sticks in my mind the most was one that took place in FL. A gay man provided sperm to a lebian couple on the basis of no involvement and then changed his mind later. The trial court judge wouldn't give him any parental rights but did give him visitation rights. The FL Supreme Court later overturned the visitation rights.

Of course we are talking about two different states here...but both states are similarly "progressive".

In this case mom and husband are estopped due to contract law I cited and public policy, biodad has standing and has requested DNA test. Husband has 2 years to request DNA if bio dad didn't.

 

[kalvan]

games removed.

The other thread has been removed.

We didn't mislead the sperm donor at all. He has admitted that donating sperm was not with the intent of coparenting. We have the signed agreement on paper (designating him as sperm donor with no rights or responsibilities) after the pregnancy occured. He has admitted that he changed his mind after the initial agreement.

But if he claims we misled him, or that he signed under duress, that changes his case?

kalvan

 

[rmet4nzkx]

The other thread has been removed.

We didn't mislead the sperm donor at all. He has admitted that donating sperm was not with the intent of coparenting. We have the signed agreement on paper (designating him as sperm donor with no rights or responsibilities) after the pregnancy occured. He has admitted that he changed his mind after the initial agreement.

But if he claims we misled him, or that he signed under duress, that changes his case?

kalvan

Yes or even if he didn't right away because you failed to follow the means provided by law to proect everyone's rights. Were you in on this or only go along with this?

 

[LdiJ]

The other thread has been removed.

We didn't mislead the sperm donor at all. He has admitted that donating sperm was not with the intent of coparenting. We have the signed agreement on paper (designating him as sperm donor with no rights or responsibilities) after the pregnancy occured. He has admitted that he changed his mind after the initial agreement.

But if he claims we misled him, or that he signed under duress, that changes his case?

kalvan

I think that you should consult an attorney. You have a contract with the bio-dad and I do think that there is a possibility that a judge could uphold your contract. I am not guaranteeing that it will happen that way...but I think the possibility exists. I have seen other cases where those types of contracts have been upheld.....however I have also seen cases where they have not been upheld.

 

[rmet4nzkx]

I think that you should consult an attorney. You have a contract with the bio-dad and I do think that there is a possibility that a judge could uphold your contract. I am not guaranteeing that it will happen that way...but I think the possibility exists. I have seen other cases where those types of contracts have been upheld.....however I have also seen cases where they have not been upheld.

He needs an attorney but he doesn't have a contract with Biodad that is enforceable no matter what you have seen in other states! Why did I go to the trouble to CITE California law???????

Based on both of your threads it would appear that the sperm donor has standing and that you wife comitted paternity fraud by leading him to think they were going to coparent, his paternity action prior to the child's birthis evidence of that contract and you and your wife are estopped from dismissing his paternity action based on CALIFORNIA CODES EVIDENCE CODE
SECTION 620-624

620. The presumptions established by this article, and all other
presumptions declared by law to be conclusive, are conclusive
presumptions.

622. The facts recited in a written instrument are conclusively
presumed to be true as between the parties thereto, or their
successors in interest; but this rule does not apply to the recital
of a consideration.

623. Whenever a party has, by his own statement or conduct,
intentionally and deliberately led another to believe a particular
thing true and to act upon such belief, he is not, in any litigation
arising out of such statement or conduct, permitted to contradict it.

Your agreement forced under duress does not abridge his standing to claim paternity. You and your wife should not have mislead this man.

OP in the deleted thread using the voice of the sperm doner states that the mother and he had an agreement to "coparent a child together" not that he was a sperm donor. Pregnancy was then accomplished with a turkey baster, in the presense of mom and biodad, no mention is made of OP being present or consenting and without the assistance of doctors or attorneys. Then, OP decided to "take over" and be the father of this child in violation of their agreement to coparent. Biodad, then took legal action prior to birth, this demonstrates this was his belief, that they would coparent this child, that he was not simply a sperm donor, this is the contract. The other contract was signed under duress well after the fact and without counsel. Mom was served well in advance of the birth, so biofather taking legal action was timely. Mom goes into premature labor 5 days following service of paternity action, proceedings are delayed owing to her claims of recovery from C section, infers the court has granted him standing dispite the marriage and husband's name on birth certificate. OP fails to tell us, at what point they got married and at what point he became a party to his wife's paternity fraud.

Yes they need an attorney, they need to pay for the DNA test to determin the father, just in case he is the father, vasectomy isn't perfect and to come to a parenting agreement with the biodad.

 

[kalvan]

OP in the deleted thread using the voice of the sperm doner states that the mother and he had an agreement to "coparent a child together" not that he was a sperm donor. Pregnancy was then accomplished with a turkey baster, in the presense of mom and biodad, no mention is made of OP being present or consenting and without the assistance of doctors or attorneys. Then, OP decided to "take over" and be the father of this child in violation of their agreement to coparent. Biodad, then took legal action prior to birth, this demonstrates this was his belief, that they would coparent this child, that he was not simply a sperm donor, this is the contract. The other contract was signed under duress well after the fact and without counsel. Mom was served well in advance of the birth, so biofather taking legal action was timely. Mom goes into premature labor 5 days following service of paternity action, proceedings are delayed owing to her claims of recovery from C section, infers the court has granted him standing dispite the marriage and husband's name on birth certificate. OP fails to tell us, at what point they got married and at what point he became a party to his wife's paternity fraud.

Yes they need an attorney, they need to pay for the DNA test to determin the father, just in case he is the father, vasectomy isn't perfect and to come to a parenting agreement with the biodad.

The other (removed) thread was not accurate. It was a worst case scenario of how we thought the sperm donor might be presenting his case.

The biodad admitted there was no agreement to coparent. It was briefly discussed and dismissed. The only proof we do have is his signed agreement after the fact, in which he says he agreed to be only a sperm donor.

Now he says he signed it under duress because he was worried she would abort if he said he intended to be more involved.

I had been dating the mother for over a year when she decided to get pregnant. I encouraged her to find a sperm donor. The sperm donor knew we were together. Shortly after she became pregnant, we decided to get married. Maybe he was expecting me to leave. I don't know.

I don't think that is paternity fraud. We never lied to him. He lied to us when he signed the agreement. Other than the signed agreement it is just his word against ours.

What do you think.

Kalvan

 

[rmet4nzkx]

The other (removed) thread was not accurate. It was a worst case scenario of how we thought the sperm donor might be presenting his case.

The biodad admitted there was no agreement to coparent. It was briefly discussed and dismissed. The only proof we do have is his signed agreement after the fact, in which he says he agreed to be only a sperm donor.

Now he says he signed it under duress because he was worried she would abort if he said he intended to be more involved.

I had been dating the mother for over a year when she decided to get pregnant. I encouraged her to find a sperm donor. The sperm donor knew we were together. Shortly after she became pregnant, we decided to get married. Maybe he was expecting me to leave. I don't know.

I don't think that is paternity fraud. We never lied to him. He lied to us when he signed the agreement. Other than the signed agreement it is just his word against ours.

What do you think.

Kalvan

We can only go by the facts as you present them and you have repeatedly lied to us in order to get the response you wanted. You have avoided giving the facts, such as when you decided to get married. Why should we expect the truth now?

You/your wife, had no contract defensable with him to be a sperm donor. Your wife committed paternity fraud. There was a reason she talked him into becoming the father of the child and didn't use a sperm bank where there would be a contract to protect your paternal rights, perhaps she lead him to believe he would have parental rights because you had not yet decided to marry her and ther would be no one to suport the child and then changed her mind after the fact, thus her misrepresentation. The agreement signed after the fact, after she tested positive and he was afraid she would abort his child, it is all about his understanding of the verbal contract she and he had and about duress. Here is the section of CA law re sprem donation:
CALIFORNIA CODES
CIVIL CODE
SECTION 43-53

Under california law, these are defenses to contract:
fro(http://www.weblocator.com/attorney/ca/law/c06.html)
Once it is determined that there is a contract, it must be determined whether there are any defenses that call into question the validity of the contract. There are some defenses that make a contract unenforceable (void) and other defenses that give the parties the option to enforce the contract (voidable).

Legality of the Contract

Although two persons may exchange an offer, an acceptance, and consideration, if the subject matter of the contract is illegal, a valid, enforceable contract does not exist. For example, if a person offers to pay another person money for illegal drugs, and an acceptance is made by a promise to deliver the illegal drugs this is nevertheless a void contract.

Capacity of the Parties

In order to be bound to a contract, the parties must be competent to enter into such a legal arrangement. Underage persons, persons who are mentally ill, and intoxicated persons are usually not held to the contracts they enter. However, a minor may have the option of enforcing a contract.
Mistake, Duress, and Fraud

A mistake by both parties to a contract on an important issue makes the contract unenforceable. However, a mistake by only one party does not necessarily make the contract void.

Duress is the use of physical force or mental pressure by one party to make the other party agree to the contract. The use of duress makes the contract voidable by the party put under duress.

Fraud is the intentional misrepresentation of an important issue of the contract. The presence of fraud in a contractual proceeding makes the contract voidable by the party upon whom the fraud was perpetrated.
Unconscionability

A contract may be unenforceable if it is found by a court to be flagrantly unfair. This defense is usually found in consumer cases, in which a person buys an item under terms so grossly unfair to the customer that the court refuses to enforce the contract.

Statute of Frauds

In many instances, contracts do not have to be in writing to be legally binding. (EC 622-623) However, a law known as the "statute of frauds" requires that some contracts must be written to be valid. Contracts involving the sale of real estate, contracts concerning the sale of goods worth more than $500, contracts that cannot be performed within one year, contracts to pay someone else's debts, leases for more than one year, and contracts for marriage must be in writing.

CALIFORNIA CODES CIVIL CODE SECTION 1688-1693
1688. A contract is extinguished by its rescission.

1689. (a) A contract may be rescinded if all the parties thereto
consent.
(b) A party to a contract may rescind the contract in the
following cases:
(1) If the consent of the party rescinding, or of any party
jointly contracting with him, was given by mistake, or obtained
through duress, menace, fraud, or undue influence, exercised by or
with the connivance of the party as to whom he rescinds, or of any
other party to the contract jointly interested with such party.
(2) If the consideration for the obligation of the rescinding
party fails, in whole or in part, through the fault of the party as
to whom he rescinds.
(3) If the consideration for the obligation of the rescinding
party becomes entirely void from any cause.
(4) If the consideration for the obligation of the rescinding
party, before it is rendered to him, fails in a material respect from
any cause.
(5) If the contract is unlawful for causes which do not appear in
its terms or conditions, and the parties are not equally at fault.
(6) If the public interest will be prejudiced by permitting the
contract to stand.
(7) Under the circumstances provided for in Sections 39, 1533,
1566, 1785, 1789, 1930 and 2314 of this code, Section 2470 of the
Corporations Code, Sections 331, 338, 359, 447, 1904 and 2030 of the
Insurance Code or any other statute providing for rescission.

CALIFORNIA CODES CIVIL CODE SECTION 1565-1590

1565. The consent of the parties to a contract must be:
1. Free;
2. Mutual; and,
3. Communicated by each to the other.

1566. A consent which is not free is nevertheless not absolutely
void, but may be rescinded by the parties, in the manner prescribed
by the Chapter on Rescission.

1567. An apparent consent is not real or free when obtained
through:
1. Duress;
2. Menace;
3. Fraud;
4. Undue influence; or,
5. Mistake.

1568. Consent is deemed to have been obtained through one of the
causes mentioned in the last section only when it would not have been
given had such cause not existed.

1569. Duress consists in:
1. Unlawful confinement of the person of the party, or of the
husband or wife of such party, or of an ancestor, descendant, or
adopted child of such party, husband, or wife;
2. Unlawful detention of the property of any such person; or,
3. Confinement of such person, lawful in form, but fraudulently
obtained, or fraudulently made unjustly harrassing or oppressive.

.....

 

[kalvan]

We can only go by the facts as you present them and you have repeatedly lied to us in order to get the response you wanted. You have avoided giving the facts, such as when you decided to get married. Why should we expect the truth now?

You/your wife, had no contract defensable with him to be a sperm donor. Your wife committed paternity fraud. There was a reason she talked him into becoming the father of the child and didn't use a sperm bank where there would be a contract to protect your paternal rights, perhaps she lead him to believe he would have parental rights because you had not yet decided to marry her and ther would be no one to suport the child and then changed her mind after the fact, thus her misrepresentation. The agreement signed after the fact, after she tested positive and he was afraid she would abort his child, it is all about his understanding of the verbal contract she and he had and about duress. Here is the section of CA law re sprem donation:
CALIFORNIA CODES
CIVIL CODE
SECTION 43-53
.....

Thank you very much for all your information.
I'm trying to get an honest assessment of this case. I have been totally honest and consistant in this thread.
I do not intend to withhold any information. My original post contained everything I thought was relevant. If there is any other info that helps or hurts my case, let me know.

She made it very clear she did not want to coparent.
How is a court to decide who deceived who?
We believed the sperm donor was a nice guy who was going to help us have a kid. From our side it seems like he deceived my wife into carrying a child that he intended to gain custody of.
Do you now believe our lack of a legal agreement constituted paternity fraud, and that this would result in our losing the case?

 

[LdiJ]

Thank you very much for all your information.
I'm trying to get an honest assessment of this case. I have been totally honest and consistant in this thread.
I do not intend to withhold any information. My original post contained everything I thought was relevant. If there is any other info that helps or hurts my case, let me know.

She made it very clear she did not want to coparent.
How is a court to decide who deceived who?
We believed the sperm donor was a nice guy who was going to help us have a kid. From our side it seems like he deceived my wife into carrying a child that he intended to gain custody of.
Do you now believe our lack of a legal agreement constituted paternity fraud, and that this would result in our losing the case?

Again...please consult an attorney. I don't believe that this is remotely paternity fraud....and I still think there is at least a possibility that the judge would uphold your contract. However, since you are getting two completely opposing opinions here....your best bet is to consult an attorney.

 

[rmet4nzkx]

Again...please consult an attorney. I don't believe that this is remotely paternity fraud....and I still think there is at least a possibility that the judge would uphold your contract. However, since you are getting two completely opposing opinions here....your best bet is to consult an attorney.

Ldij,
IAAL has repeatedly asked you to refrain from answering questions re California law because you have no idea what you are talking about and refuse to cite appropriate law as I have repeatedly done here based upon what OP and his alter have stated. Your uninformed personal belief is of no relevance in answering OP's questions and he cannot speak for either his wife or Biodad because he wasn't there.

I do believe that OP needs an attorney, however, for different reasons. If you bother to read the sections of California law cited here OP will easily see it is more than a difference of opinion between you and me but that they failed to meet the specific elements required by statute for a sperm doner contract, furthermore, they do not meet the 3 elements required to have an enforceable contract in addition to the fact that biodad has already been granted standing to establish paternity.

An attorney will assist them in complying with the law and mitigating any personal loss. It is unfair to give OP an unrealistic hope of somehow denying this father his paternal rights which he obviously wishes to enjoy. This man has provided his wife something he could not provide and this child has 3 adults interested in being his parent and loving and caring for him. Since OP failed to get an enforceable sperm doner contract, should there be a divorce, this child could be without any parental figure and or support and that would not be in the child's best interest which is what this is all about, not a difference of opinion.

 

[LdiJ]

Ldij,
IAAL has repeatedly asked you to refrain from answering questions re California law because you have no idea what you are talking about and refuse to cite appropriate law as I have repeatedly done here based upon what OP and his alter have stated. Your uninformed personal belief is of no relevance in answering OP's questions and he cannot speak for either his wife or Biodad because he wasn't there.

I do believe that OP needs an attorney, however, for different reasons. If you bother to read the sections of California law cited here OP will easily see it is more than a difference of opinion between you and me but that they failed to meet the specific elements required by statute for a sperm doner contract, furthermore, they do not meet the 3 elements required to have an enforceable contract in addition to the fact that biodad has already been granted standing to establish paternity.

An attorney will assist them in complying with the law and mitigating any personal loss. It is unfair to give OP an unrealistic hope of somehow denying this father his paternal rights which he obviously wishes to enjoy. This man has provided his wife something he could not provide and this child has 3 adults interested in being his parent and loving and caring for him. Since OP failed to get an enforceable sperm doner contract, should there be a divorce, this child could be without any parental figure and or support and that would not be in the child's best interest which is what this is all about, not a difference of opinion.

I told him to consult an attorney. If the contract is not enforceable the attorney will tell him that.

You are not an attorney. If IAAL was telling him that the contract had no possibility of being enforced, then I wouldn't have made any suggestions. However I doubt that IAAL would tell him that without reading the contract first. However I believe that this issue is important enough that AN ATTORNEY needs to tell him whether or not there is a chance of enforcing the contract.

 

[rmet4nzkx]

I told him to consult an attorney. If the contract is not enforceable the attorney will tell him that.

You are not an attorney. If IAAL was telling him that the contract had no possibility of being enforced, then I wouldn't have made any suggestions. However I doubt that IAAL would tell him that without reading the contract first. However I believe that this issue is important enough that AN ATTORNEY needs to tell him whether or not there is a chance of enforcing the contract.

By all means OP should see an attorney who will explain to them the same statutes found in California law that I have cited. I don't have to be an attorney to cite California law, that is one of the points IAAL has been making with you all this time, that your uninformed personal opinion is not relevant and since you refuse to cite appropriate state law and then jump to arguing things that may never come to pass, wastes everyone's time and confuses the issues.

There was no need for IAAL to tell him anything or read his contract, there was no sperm donor contract conforming with California Law! In the begining it was unclear what had transpired, but as time went on it became more clear there was not an enforceable sperm donor contract at all.