estoppel of paternity?

[casa]

Thanks for that info, that is basically what I have found regarding estoppel of paternity. For all that I have found, there is nothing that he can use as far as case law or statutes goes, everything says that wehre he has done this for the past 12 years, he cannot all of a sudden stop now. Wether you call it defacto parent, or whatever. I used the term legal father, because that is what is listed in their court order. The court conciders him the legal father, even though there was no formal adoption, AOP, or anything. They did have my nephew's last name changed from my sister's maiden name to his last name, about 4 or so years ago. I don't know if that would help my sister, either. The whole arguement for my nephew was "my mom, my brother, and my father, all have the same last name...I want that last name, too." So they had gone in front of the judge, and legally changed his last name.

He's in for a tongue lashing trying to do this in court...What will he tell the judge his reasons are? That the child has Disorders? Courts don't look kindly on ANY parent who wants to 'dump' a kid once it gets too 'difficult' for them.

 

[angeleyzad]

I'm assuming the major issue is treatment for nephew's Diagnosis'...in which case, Mom can simply treat the child per the Dr's recommendation. I realize Dad isn't agreeing, but when it comes down to it (even if they have Joint Legal Custody)...Dad would have to file against Mom in court for contempt- and NO judge will cite her when she is following the advice/treatment plan from their physician.

If Dad isn't seeing son anymore~ I imagine Mom won't have to worry if Dad gives the child his medication (& at his age he can learn to be somewhat responsible for that himself).

Get the child in counseling...change is difficult for a child with ADHD (& moreso with co-existing disorder). The effects of the divorce could have been a catalyst~ And regardless this is a difficult time for kids <pre-teen/teen years> and it will only benefit nephew to have his medical treatment augmented with therapy.

He is in counceling, and the problems were - going into 7th grade, dealing with the divorce, and also his father was telling him that he didn't have a problem, that he didn't need the medication - which made it very difficult. They had started out with 50/50 time, one week here, one week there, and it was not working out - my nephew couldn't adjust. He would get back from his father's house, and would be hateful until the last couple of days, then would finally be getting back to normal, then would have to go back to his father's, so the cycle would start all over again. Even though my nephew is almost 13, he is in no way mature. He is just starting to go through puberty, so those changes just add to his other issues. It makes it extremely difficult to deal with him at some times. My whole family does all that we can for him, to make it easier for him to deal with everything that is going on. His father has poisoned his mind about my sister, he would not accept the divorce, and blamed everything on her, which he talked the boys into believing the same thing. It's sad, but it's just the way this man was. He doesn't want to listen to the judge, or to court orders. He just does what he wants to do.

I'm glad that my nephew has not been seeing him, but at the same time, he needs some sort of contact/support from him. This father's day was pretty hard on my nephew, knowing that his father did not want to see him at all.

 

[angeleyzad]

He's in for a tongue lashing trying to do this in court...What will he tell the judge his reasons are? That the child has Disorders? Courts don't look kindly on ANY parent who wants to 'dump' a kid once it gets too 'difficult' for them.

The sad thing is, though, that he won't care - he may get slammed by the judge, but he won't listen. My sister had to get a restraining order on him for stalking, theft, and such, he would come onto her property and take items that he was not supposed to, items belonging to her and to the kids.

I'm pretty sure that the judge will make him take responsibility for my nephew, based on estoppel of paternity, even if it is just financial responsibility. That will be a start for now. He has not done anything for him in over a month.

 

[angeleyzad]

Update - any thoughts?

Hey, my sister just got a letter from her ex's lawyer - any thoughts on this? From what I can see, estoppel still applies.

Background - he knew all along the legal responsibilities of claiming my nephew as his son, he stated to my entire family that he was the father, and that was that. This letter from the lawyer is stating otherwise.

In the instant matter, mr XXXX never signed an acknowledgement of paternity. More importantly, he was not provided with the oral and written notice of his alternatives, legal consequences of and the rights and responsibilities that arise from sighning such an acknowledgment. Rather, mr XXXX unrepresented by counsel, simply agreed for purposes of the parties' divorce that he was the child's father, without the necessary and full understanding of the legal consequences of doing so. He also never signed an acknowlegement of paternity. The judgement in question is not a legal acknowledgment of paternity as is identified in 19-A.
Of further importance is the fact that the parties' divorce agreement provided for no child support to be paid from mr XXXX to ms XXXX on behalf of the minor child. Hence, it is even more likely that mr XXXX did not possess a full understanding of the legal consequences of entering into such an agreement in July of 2005. Without such an understanding and appropriate notice of the consequences of the agreement, mr provencher's agreement cannot constitute a valid acknowledgement of paternity.
A district court may rescind an acknowledgement of paternity that has been validly entered. See e.g Bouchard v. Frost, 2004 ME 9, 840 A 2d 109 (neither party challenged district court's rescission of acknowlegement of paternity and declaration that father was not liable for child support following the rescission); see also Department of Human Services v. Blaisdell, 2004 ME 62, 847 A. 2d 404 (parties agreed that district court acted within its discretion in rescinding acknowledgment of paternity and relieving father of his obligation to provide child support for the minor child.) This is consistent with decisions in other jurisdictions, as well. See e.g. Walter v. Gunter, 788 A.2d 609 (Md. 2002)(there is no situation in law, contract, tort, or otherwise, that would require a continuing financial obligation for child support on a contract subsequently ruled invalid or a tort judgment subsequently vacated.)
In this case Mr XXXX's agreement in the divorce judgment regarding his paternity of the minor child, is void for at least two significant reasons. First, pursuant to 19-A MRSA 1616, a person may not acknowledge paternity unless he is advised in writing of the legal consequences. No such advisement wxists in this case. Second, Mr XXXX never signed an acknowlegement of paternity, as is required under the statue. Rather he agreed orally that for purposes of the Divorce judgement, he was the father of XXXX. Pursuant to Maine Law, this is not a vallid acknowledgement of paternity and is void.
Because Mr XXXX never signed a valid acknowledgement of paternity and because he lacked a full understanding of the legal consequences of his actions, as is required under the law, the divorce judgement concerning his parental rights and responsibilities for Jonathan are void. As such, those provisions must be excised from the judgement.
WHEREFORE, defendant repectfully requests that this honorable court relieve defendant from the parties' divorce judgement as it related to his parental rights and responsibilities concerning XXXX, and issue any further relief as it deems just and proper.

 

[angeleyzad]

His lawyer is saying that my ex BIL did not know any of the responsibilities that were attached to claiming my nephew - that a year ago when they did the divorce, he "did not know what he was doing" He has told everyone in my family that he would be the only man to be responsible for my nephew.

I'm just trying to find more info for my sister, so that she can be prepared to fight this. My nephew does not know that he is not his real father. He is the only father he has ever known.

 

[moburkes]

OP, I cannot help either, but I have a question. The letter that you posted states that X does not currently pay child support for your nephew, but I thought one of your original problems with him trying to get out of the situation is financial. Did I misunderstand?

 

[moburkes]

His lawyer is saying that my ex BIL did not know any of the responsibilities that were attached to claiming my nephew - that a year ago when they did the divorce, he "did not know what he was doing" He has told everyone in my family that he would be the only man to be responsible for my nephew.

I'm just trying to find more info for my sister, so that she can be prepared to fight this. My nephew does not know that he is not his real father. He is the only father he has ever known.

I understand your explanation of the situation. And it is a doozy! I don't think that you are going to receive helpful responses here, because its just too complicated. I was simply asking specifically about the financial part. If he is not currently responsible for him financially, this estoppel will not change that. However, it will open up a huge can of worms!

 

[rmet4nzkx]

Where is the estoppel if he didn't acknowledge paternity and doesn't owe child support. Mom needs to fingue out who the bio dad is, establish paternity with the bio dad and get court orders for child support from the bio dad.

 

[moburkes]

Where is the estoppel if he didn't acknowledge paternity and doesn't owe child support. Mom needs to fingue out who the bio dad is, establish paternity with the bio dad and get court orders for child support from the bio dad.

But the problem with that, though, is that its been at least 12 years, and she's had 3 people tested, so she may not even remember..... !

 

[rmet4nzkx]

But the problem with that, though, is that its been at least 12 years, and she's had 3 people tested, so she may not even remember..... !

Then she needs to contact the Maury Povich Show.

 

[moburkes]

Then she needs to contact the Maury Povich Show.

I said it was a doozy!

 

[rmet4nzkx]

I said it was a doozy!

You never know, bio dad may be so despirate for attention that he would gladly be on the "Who my baby daddy show?"

 

[angeleyzad]

Right now, the two children are supposed to be one week with him, one week with her - 50/50 time, so there was no child support. He was ordered to pay anything else half and half - medical, etc. There is an issue with copays, he never pays - that has been ongoing. Now, he has not been taking the one son for probably close to 2 months, because he can't handle his (adhd/turrettes) issues (his wording), so my sister is asking for child support.

DHS had closed the case on my nephew years ago, because no father could be found - she does not know who it is. This man is the only father he has ever known.

Isn't it the practice to not leave a child fatherless? He essentially has been the "de facto" father. Isn't that what estoppel would be used for?

 

[angeleyzad]

You never know, bio dad may be so despirate for attention that he would gladly be on the "Who my baby daddy show?"

The thing is, of all the possible people that it could have been, a biological father was not found.

It's awful for my nephew, his "father" (yes, we all concider this man to be his father, at his instance for the past 12 years) wants nothing to do with him now.

If the courts allow this, then he will be fatherless. I thought that the courts did not do that?

 

[moburkes]

You never know, bio dad may be so despirate for attention that he would gladly be on the "Who my baby daddy show?"

Okay, okay. OP specifically asked for no drama.


OP: I don't think we can help you. But, like I said, I'm still trying to figure out why this will end up making some type of difference, since it seems to me (based on your posts), that the only issue is money, unless I'm missing something.

Obviously, the mother will have some explaining to do ANYWAY, since the X only picks up his bio-child at visitation time.

Edited to add:
OP: I didn't see your response, before this. Understand that his mother made him fatherless. Just say, for the sake of argument, that X did not agree to be the legal father at the time of the divorce. MOM put the child in this situation, not X. X just didn't realize the enormity of the situation. Now, maybe he can't get out of it. But, he can open his big mouth to CHILD, and tell him what's going on. MOM is going to have to answer for this eventually. AND she really does need to be collecting child support from somewhere.