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Author Topic: Legal status and interpretation questions  (Read 3062 times)

annemichellesdad

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Legal status and interpretation questions
« on: Mar 14, 2006, 03:58:42 AM »
Hello and thank you in advance. I am a father in GA struggling with an NPD mother. As you are well aware, narcisstic personalities often do not reveal themselves until after the relationship develops problems. In this case, the mother was very happy to have me as a father, and it was very convenient to her for me to be so eager to care for our child after we split up. However, mother wants to be rid of me now, so she's refusing to allow me to see our child.

Although not married, we cohabited for years together, and, at the time of our child's birth, fully established our parental rights (legalizing me as the father) through our child's birthstate's administrative program. The acknowledge signed by both of us, according to state law, has "the effect of a judgment".

We now live in GA. Mother claims that withholding our child is solely at her discretion according to GA law, and that according to GA law our child is no longer legitimate and that I am not a legal father whatsoever. She claims the out-of-state documents (administrative judgment) are now worthless.

The basis for all of this is a GA law that states: "A child born out of wedlock is defined as the child of parents who are not married when the child is born." This definition determines not only the legal relationship between unwed fathers and their children in GA, but there's numerous laws thereafter saying the child can't inherit, mother's have sole custody, etc. So really, it's the basis for everything.

1 - Is an administrative judgment establishing the legal status of a father (yes, I understand that this is NOT the same thing as "custodial" status) really rendered worthless just by crossing state lines? What about full faith and credit?

2 - The signed papers consistent of written and witnessed acknowledgments of paternity, administrated by the Dept of Social Services, and, through statute, given the effect of a judgment.Would it be possible to domesticate a foreign administrative judgment?

3 - Regardless of the validity of the out-of-state papers, the GA law seems only to apply to births occuring in the state of GA, subsequently affecting only parental relationships between parents and their children who are born in the state of GA. The present-tense "ARE not married WHEN the child is born" suggests that the law is only meant to be applied in the present-tense at a very specifc time (when the child is born). Since no state, obviously, can pass a law which affects citizens OUTSIDE ITS JURIDICTION, then this law would not have been applicable at the time of our child's birth. And, due to the present-tense restraint, it does not appear to operate retroactively. (That is, it does not say "parents WERE not married".) In other words, this law seems 1) to be applicable to parents-children born in the state of GA only, 2) does not provide, correctly, for any jurisdictional crossing, either at the time of a child's birth OR after the fact.  

Does this seem like a proper legal interpretation?

4 - There has never been a court order affecting legal rights or custody issues here in GA. If my legal rights as a father are indeed intact, and I have consistently demanded for my child to be returned to me, then would not the absence of a court order or statute to protect the mother's withholding of our child open the possibility of civil liability (on her part) for parental interference?

Thank you for your assistance. I know that some sort of litigation is necessary, as I have taken the situation with this NCP as far as it can go otherwise for the sake of amicability. Those who also must co-parent with a narcisstic parent understand that court doesn't always provide relief from them, either


socrateaser

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RE: Legal status and interpretation questions
« Reply #1 on: Mar 14, 2006, 08:39:24 AM »
>1 - Is an administrative judgment establishing the legal
>status of a father (yes, I understand that this is NOT the
>same thing as "custodial" status) really rendered worthless
>just by crossing state lines? What about full faith and
>credit?

You don't have a judgment filed in a court. You have a statute that creates the "effect" of a judgment, which a court of the state in which the statute applies must recognize. But, the full faith and credit clause only applies to actual final judgments of a court in one of the several states, and you don't have one of those. So, GA authorities do not have to recognize your claim of paternity.

There may be GA case law which has already dealt with this issue and which recognizes the acknowledgement of paternity as having the effect of a judgment. If so, then the child's mother is wrong and you are right. If not, then you need a GA court to declare you the legal parent on the basis of the evidence appearing on the face of your acknowledgement of paternity from the other state.

Which, unfortunately, means filing suit against the mother in GA to establish yourself as the legal father. If you do, I doubt that the GA court will do much more than say, "Yep, so ordered," and then you'll have an actual final judgment declaring you the father. But, until you get that judgment, you will continue to have problems.

>2 - The signed papers consistent of written and witnessed
>acknowledgments of paternity, administrated by the Dept of
>Social Services, and, through statute, given the effect of a
>judgment.Would it be possible to domesticate a foreign
>administrative judgment?

It's not a judgment. A judgment is an order of a court that fully and finally adjudicates the issues brought before it. An acknowledgement of paternity is a document which is given the power of a judgment in the state where the document was issued consistent with state law. But, outside of that state, it's not a judgment, so you can't domesticate/register it as a judgment, because...(everybody sing):

"It's NOT A JUDGMENT!" :-)

>
>3 - Regardless of the validity of the out-of-state papers, the
>GA law seems only to apply to births occuring in the state of
>GA, subsequently affecting only parental relationships between
>parents and their children who are born in the state of GA.
>The present-tense "ARE not married WHEN the child is born"
>suggests that the law is only meant to be applied in the
>present-tense at a very specifc time (when the child is born).
>Since no state, obviously, can pass a law which affects
>citizens OUTSIDE ITS JURIDICTION, then this law would not have
>been applicable at the time of our child's birth. And, due to
>the present-tense restraint, it does not appear to operate
>retroactively. (That is, it does not say "parents WERE not
>married".) In other words, this law seems 1) to be applicable
>to parents-children born in the state of GA only, 2) does not
>provide, correctly, for any jurisdictional crossing, either at
>the time of a child's birth OR after the fact.  
>
>Does this seem like a proper legal interpretation?

I appreciate your trying to think like a lawyer. But, your argument is irrelevant, because the acknowledgement of paternity that you have is (everybody sing):

"NOT A JUDGMENT."

>
>4 - There has never been a court order affecting legal rights
>or custody issues here in GA. If my legal rights as a father
>are indeed intact, and I have consistently demanded for my
>child to be returned to me, then would not the absence of a
>court order or statute to protect the mother's withholding of
>our child open the possibility of civil liability (on her
>part) for parental interference?

Nope. You're not the legal father, because you don't have a judgment of paternity, which apparently, is the only thing that GA law recognizes.

So, file suit for paternity in GA, and submit the acknowledgement of paternity as substantivy proof of you being the father, and allege that you are the father (and, frankly, I would demand a paternity test, to make absolutely certain that you ARE the father, because if you're not, then you are FREEEEEEEEE of all this horse!@#$!).

Then, if you are found to be the father from the DNA test, then the court will issue a judgment stating so, and that will be the end of this particular issue -- and the beginning of another.

In closing, please do not refer to the other parent as a narrcisist in this forum. She may be evil and she may not, but on this board, I don't permit derogatory remarks about parties to a case, because it intimidates others from posting here for help, when they think that maybe I believe that certain groups of persons are inherently bad (or good).

If you persist, I'll just delete all of your posts without review, going forward.

annemichellesdad

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RE: Legal status and interpretation questions
« Reply #2 on: Mar 14, 2006, 09:28:00 AM »
Thank you for your help. I get the point that IT'S NOT A JUDGMENT.

My apologies for using the 'n' word. It was not intended as derogatory remark so much as a description of what I believe to be an existing borderline personality disorder. I will not use the description again. :)

Insofar as Georgia recognizing my legal status as a father, another member in these forums suggested I look up US Pub. L. 103-66, Aug. 10, 1993, 107 Stat. 312— Omnibus Budget and Reconciliation Act of 1993.  (Apparantly, I am not the first person who has had to deal with Georgia in this respect. Ga seems to be taking otherwise legal father-child realtionships from other states and essentially 'delegitimizing' them.).

"Section 466(a)(11) requires States to have laws and procedures under which the State must give full faith and credit to a determination of paternity made by any other State, whether established through voluntary acknowledgment or through administrative or judicial processes."

1 - If the original state's administrative process established both biological and legal paternity, then it would seem that this federal law sort of requires GA to afford it the full legal weight and effect it would enjoy had it been rendered in the forum state. Does this seem to be the case? (Obviously, and according to the OBRA, the state must have some procedure. I have enquired endless to various state agencies, including the Dept of Social Services & Human Resources and the State Attorney General's Office and they are clueless.)

2 - In my original post, Question #3 was disregarded on the basis of the song "it's not a judgment."  But if GA is required to fully recognize the establishment of paternity from another state, does the argument concerning the wording of GA's definition of a "child born out of wedlock" have any merit?

I understand that this federal law seems to intercede in areas normally considered soveriegn states' rights. However, the 1993 OBRA provides federal funds to states (specifically, matching dollars for state-collected child support), and, as we know, states frequently relinquish soverienties in order to participate in lucrative federal spending programs.

Thanks again. Any insight will be helpful!


socrateaser

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RE: Legal status and interpretation questions
« Reply #3 on: Mar 14, 2006, 10:39:11 AM »
>Insofar as Georgia recognizing my legal status as a father,
>another member in these forums suggested I look up US Pub. L.
>103-66, Aug. 10, 1993, 107 Stat. 312— Omnibus Budget and
>Reconciliation Act of 1993.  (Apparantly, I am not the first
>person who has had to deal with Georgia in this respect. Ga
>seems to be taking otherwise legal father-child realtionships
>from other states and essentially 'delegitimizing' them.).
>
>"Section 466(a)(11) requires States to have laws and
>procedures under which the State must give full faith and
>credit to a determination of paternity made by any other
>State, whether established through voluntary acknowledgment or
>through administrative or judicial processes."
>
>1 - If the original state's administrative process established
>both biological and legal paternity, then it would seem that
>this federal law sort of requires GA to afford it the full
>legal weight and effect it would enjoy had it been rendered in
>the forum state. Does this seem to be the case? (Obviously,
>and according to the OBRA, the state must have some procedure.
>I have enquired endless to various state agencies, including
>the Dept of Social Services & Human Resources and the State
>Attorney General's Office and they are clueless.)

Good research! I take back everything I ever said about you (including the good stuff). ;-)

>2 - In my original post, Question #3 was disregarded on the
>basis of the song "it's not a judgment."  But if GA is
>required to fully recognize the establishment of paternity
>from another state, does the argument concerning the wording
>of GA's definition of a "child born out of wedlock" have any
>merit?

I think you have an excellent argument to have your acknowledgement of paternity declared equal to a judgment by a GA court, per federal law.

The 11th Amendment does not protect a state from a federal declaratory judgment. Only damage suits against the states are prohibited.

So, you're still in the same place: You need to sue for a declaration of paternity, either under Federal law, or under GA's paternity laws. But, the fact that GA has no procedure to comply with the Federal requirement, even if it damages you, is not redressable in court, unless the state of GA has consented to suit (which it may, but I'm not an expert on GA law, so I don't know where the State has waived its sovereign immunity).

>I understand that this federal law seems to intercede in areas
>normally considered soveriegn states' rights. However, the
>1993 OBRA provides federal funds to states (specifically,
>matching dollars for state-collected child support), and, as
>we know, states frequently relinquish soverienties in order to
>participate in lucrative federal spending programs.

You must be a law student, but if you're not, then you should be, because you understand how the game's played.

annemichellesdad

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RE: Legal status and interpretation questions
« Reply #4 on: Mar 14, 2006, 11:47:55 AM »
Much thanks for the feedback. I'm having to explore all options because the mother is so determined to keep me from our child.

I was intitially discouraged by your first post, so, after reading it, renewed my efforts to find someone at the state level who might be of some help on the matter. Fortunately, and surprisingly, I may an avenue with the Dept of Vital Records, who handles the state's paternity registry. The person in charge of legal affairs with the department admits that they have never had an inquiry such as mine, but acknowledged an understanding of the difference between legal paternity (parental rights) and simple biological paternity. And they seemed willing to investigate what "procedures" might be followed so as to have an out-of-state acknowledgment recognized in GA. (They agreed that going through GA's "legitimation" would consist of going to court and asking for permission to have what was already fully established.)

Anyway, we'll see how that works out. Seems that if it is handled administratively within the state of GA, I will have an "enforcable" document on which to state a claim, whether for domestic or liabilty reasons. So, thanks for lighting that spark under my bottom!


And thanks again for the feedback in general. No, I've never had anything to do with the law before. I'm a musician and a photographer. But I understand and retain many of the things I read rather efficiently. (As a classical musician, I'm constantly memorizing many, many pages of music, for instance.) I hope some of this will come in helpful. I'd much rather negotiate a settlement with her attorney, but I have to have something with 'teeth' to take in with me. Hence, the question about a potential liability suit for parental interference.



socrateaser

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RE: Legal status and interpretation questions
« Reply #5 on: Mar 14, 2006, 01:18:35 PM »
>And thanks again for the feedback in general. No, I've never
>had anything to do with the law before. I'm a musician and a
>photographer. But I understand and retain many of the things I
>read rather efficiently. (As a classical musician, I'm
>constantly memorizing many, many pages of music, for
>instance.) I hope some of this will come in helpful. I'd much
>rather negotiate a settlement with her attorney, but I have to
>have something with 'teeth' to take in with me. Hence, the
>question about a potential liability suit for parental
>interference.

Fma7////Em7b5//A7b9//Dmin7//Cmin7/F13/Bbmaj7//Eb13//A13#5//D7b9//Gmin7//C13//Amin7//D7b9//Gmin7//C13//

(first eight bars of chords for "Georgia on My Mind")

The law and music are not incompatible.

DecentDad

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Excuse my butting in... but wouldn't it just be easier/quicker...
« Reply #6 on: Mar 15, 2006, 06:54:03 AM »
For the original poster to simply file a paternity action seeking joint custody on the basis of being a highly involved parent and having been recognized as such by another state (i.e., via an exhibit in his pleadings)?

I can't imagine that the mother's attorney will be swayed by his legal theories, and the more time passes without contact with the child, the worse I would think his case becomes for anything close to a 50/50 custodial outcome.

The GA system is set up to play a certain way, and it just seems like he's going to spin his wheels on this approach, all while the clock ticks by without seeing his child (rather than jumping into the established system for quicker resolution).


socrateaser

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RE: Excuse my butting in... but wouldn't it just be easier/quicker...
« Reply #7 on: Mar 15, 2006, 07:31:31 AM »
>For the original poster to simply file a paternity action
>seeking joint custody on the basis of being a highly involved
>parent and having been recognized as such by another state
>(i.e., via an exhibit in his pleadings)?
>
>I can't imagine that the mother's attorney will be swayed by
>his legal theories, and the more time passes without contact
>with the child, the worse I would think his case becomes for
>anything close to a 50/50 custodial outcome.
>
>The GA system is set up to play a certain way, and it just
>seems like he's going to spin his wheels on this approach, all
>while the clock ticks by without seeing his child (rather than
>jumping into the established system for quicker resolution).
>
>

At the moment, per GA law, the father is a legal stranger to the child. He needs to establish paternity, and it doesn't matter how this happens. At the end of the day, this means filing a petition in a court, unless someone in the executive branch of government decides to create an administrative process that will recognize the father's status without a court judgment.

It gets back to what I said originally. He needs a judgment in his favor, and it shouldn't be real difficult to obtain based on the facts posted. My biggest concern is that the father make certain that he is in fact the father, so as long as he's throwing pleadings around, he may as well demand a DNA test.

annemichellesdad

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RE: Excuse my butting in... but wouldn't it just be easier/quicker...
« Reply #8 on: Mar 15, 2006, 09:21:50 AM »
That's a good point. In theory it WOULD be easier. Like many cases around here, however, there's much more to see than at first evident.

The mother, inexplicably, has already made it clear that she will actually fight ANY "legitimation" request, including making allegations of child molestation. Unfortunately, such a request, aside from being totally demeaning, is entirely at the discretion of the judge, and if I stand up in front of the judge on the wrong day like that, I can find myself PERMANTLY DECREED as having no parental rights whatsoever. (Let's NOT say that the judge would so this out of any gender bias. I really believe that in most cases, such gender bia does NOT exist. However, we might entertain the possibility that the judge might not have the resources to give the case as much time and consideration as is needed to see that I am a good father, and thus would play a "better safe than sorry" game, doing what the mother requests.) In addition, once legitimated, the burden would be for me to prove a substantial change of circumstances just to establish JOINT custody, as even the father of a child who has legitimated their child has no custodial rights whatsoever. The mother of our child doesn't LOOK the part of a bad mother enough to go that route and obtain any custody on the basis of "signficant change of circumstances".

I have, unfortunately, had to accept that, for the meantime, this mother is going to get her way. That is why I am looking into the potential of having my parental rights recognized by GA through an administrative procedure that does not involve the mother. THEN, I could argue parental interference and intentional infliction of emotional distress in a separate tort action that could possibly bring about some negiotated settlement on the custody/visition issue.

One other interesting aspect of this case involves this mother's own father, who is in the middle of a divorce himself. Turns out that, in anticipation of being served divorce papers, he transferred all of the marital property (including a historic antebellum mansion), as well as ALL of his business dealings (he had his own real estate company) over to his daughter. While I don't know all of the legal ramifications of such action (the legitimacy of the transfers is still being argued in divorce court), there are other issues of her father's business in which she has become involved. In particular, neither he nor his business have even filed an income tax return in nearly twenty years. In addition, there is substantial evidence that shows that after the transfer of these assets, she wrote to him many hundreds of thousands of dollars worth of checks from the business account (in her exclusive control) to him, listing it as a - (cough) -  "loan repayment".  We have reason to believe that the IRS has begun pursuing him. Unfortunately for her, she's left "holding the bag".

So, I have other incentives, you see, for insuring that my legal status as a father be recognized through procedures not directly involving the mother, which will be in place should the mother find herself incarcerated for other reasons. And maybe, facing a civil lawsuit and custody lawsuit from me, while becoming a co-defendant in a divorce suit, and possibly being pursued by the IRS as well, she'll simply find the easiest settlement with me possible and simply sign some papers for visitation which we can take to a judge.

Mind you, I've only scrathed the surface, and I can't everstate this mother's determination to win in her conflict with at any cost (including the child), but you might be getting the picture why a little "wheel spinning" might be an unfortuante but necessary part of this little problem.

To Soc....

If you are still there, I know this post has gotten "off" a little from the standards of questioning. But if I may ask one more relevant question in tihs thread...

1 - You mentioned the 11th Amendment and declaratory judgments. If I take your meaning correctly, did you suggest that I file a lawsuit in federal court for a declaratory judgment for full recognition of my parental rights as established by VA?

2 - If so, would the state of GA be the "defendant"? Would a particular state agency need to be identified, or simply the state itself?

3 - This doesn't seem like something GA would want to fight. After all, they have no incentive to deprive me of my legal rights. Rather, they merely lack the procedure to clarify my already-established rights in this state. (After all, the public policy of the state of GA strongly favors the presumption of legitimation.) Thus, might I expect GA to simply "settle" outside of court rather quickly?

Thank you!

DecentDad

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RE: Excuse my butting in... but wouldn't it just be easier/quicker...
« Reply #9 on: Mar 15, 2006, 10:43:23 AM »
This being Soc's board, I won't challenge any of your assumptions, for I'm not an attorney.

But from my experiences, I strongly recommend that you consult with an experienced family law attorney in your county to answer the following issues you raised:

1.  Does a party need to prove a change of circumstance when no court ruling exists; as you suggest?

2.  By simply requesting a paternity ruling, do you run any risk at losing your parental rights; as you suggest?

3.  Is your ex any less reasonable than a large percent of mothers in a child custody matter?

As a layperson, I think you're mapping out all these backroads to travel on without fully knowing the threats (if any) of simply jumping on the highway and getting to the same place faster and easier.

 

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