Ok...let me give this a try.
A legal father is either someone automatically considered to be the father legally, ie the husband of the mother. That sounds like its not the case here (although again, I am not sure because you are not explaining things very clearly).
Or, someone who has signed an AOP (Affidavit of Paternity) and has been placed on the child's birth certificate as a result.
Or, someone who has been declared the father by a court of law, usually after a DNA test.
If someone is paying child support for a child, then one way or another they are the legal father. Either they signed the AOP or a court declared them the father, or both.
If the state attempted to get child support ordered for a particular child, from a particular man, and was challenged by the man and the state failed, that would generally indicate that a DNA test was performed that proved that he was not the ACTUAL father, therefore even if he was originally the legal father, that legal paternity was disestablished.
What is getting increasing clear here is that either you don't know the legal details, which are critical to getting reasonable advice, or that you don't know how to explain the legal details. Which is why everyone is telling you that an attorney is needed.
If you cannot explain it to us in a way that we can clearly understand the situation, then there is no way that you can explain it to a judge either...or in this case, that the parties with legal standing can explain it to a judge, because apparently you do not have legal standing.
Here is all that we really understand at this point:
Mom is in jail.
There are two children.
There is doubt as to who is the father of each child...both legally and biologically.
Someone who thinks he is the father has taken the the children and has filed for custody and the maternal extended family is upset.
One thing however that I CAN tell you is that if the person who has taken the children can prove not only that he is their biological father, but that he also has a relationship with the children and has acted as their father, then he WILL get sole legal and physical custody because mom is in jail. It will be up to mom to attempt to change that once she is released.
In that circumstance the most that the maternal family will be able to obtain is limited visitation, and that's not guaranteed.
Again, this is not something that should even be attempted without an attorney.
First of all, thank you for your answer. I totally agree that we need an attorney. Can't afford one right now, but maybe come time for the hearing we will.
I agree that he may get sole custody. But he has to prove it first. Something that has NOT been done. Until a judge orders the DNA test, proves paternity, and grants him sole custody, he cannot legally keep the kids' mother from receiving a call or a visit while she is away. Is there another provision of law that grants paternity besides ORS 109.070 1 (a) through (g)?
109.030 Equality in rights and responsibilities of parents
"Mother has a right to hear from her kids and how they are doing" even behind bars.
109.070 Establishing paternity. (1) The paternity of a person may be established as follows:
(a) A man is rebuttably presumed to be the father of a child born to a woman if he and the woman were married to each other at the time of the child’s birth, without a judgment of separation, regardless of whether the marriage is void.
(a) NO. Husband signed non-paternity papers with mother.
(b) A man is rebuttably presumed to be the father of a child born to a woman if he and the woman were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment or dissolution or after entry of a judgment of separation.
(b) NO. he never married the mother. Also, see (a).
(c) By the marriage of the parents of a child after the birth of the child, and the parents filing with the State Registrar of the Center for Health Statistics the voluntary acknowledgment of paternity form as provided for by ORS 432.287.
(c) NO. Never married and form never filled our or filed.
(d) By filiation proceedings. A process whereby a court determines the paternity of an illegitimate child in order to establish the father's duty to provide support for the child.
(d) NO.
(e) By filing with the State Registrar of the Center for Health Statistics the voluntary acknowledgment of paternity form as provided for by ORS 432.287. Except as otherwise provided in subsections (4) to (7) of this section, this filing establishes paternity for all purposes.
(e) NO. Grandmother obtained copy of birth certificate. Still no father listed.
(f) By having established paternity through a voluntary acknowledgment of paternity process in another state.
(f) NO. Father refuses to sign paper with mother. Now that is not even possible for up to 24 months.
(g) By paternity being established or declared by other provision of law.
(g) NO.
It's all a moot point anyway. Until he ACTUALLY serves the papers to her, there will be no hearing on custody. Court records still show no Certificate of Service as of today.
