S.P.A.R.C.

Separated Parenting Access & Resource Center
crazy gamesriddles and jokesfunny picturesdeath psychic!mad triviafunny & odd!pregnancy testshape testwin custodyrecipes

Author Topic: Declaratory judgment  (Read 1206 times)

annemichellesdad

  • Jr. Member
  • **
  • Posts: 81
  • Karma: 0
    • View Profile
Declaratory judgment
« on: Oct 22, 2006, 11:54:35 AM »
Dear Soc,

The issue here is a motion for declaratory judgment in the state of GA in order to have parental status and rights as established in another state by means of administration judgment enforcable in the forum state. The mother was a party to the administrative action in the birth state; she does not deny that I am the father, but she denies that the administrative action in the birth state legitimated our child. Legally, she in incorrect, but her contention, along with the absence of an ENFORCABLE ORDER within the state of GA, creates a question of law answerable by declaratory judgment.

(NOTE: GA statute clearly recognizes both administrative and judicial or have I missed something? judgments of paternity from all other states, requiring that they be afforded full legal weight and effect as they enjoyed in their original state. However, the statute doesn't provided any particular PROCEDURE (short of declaratory judgment) by which administrative judgments are recognized with full faith and credit in an "enforcable" form. )

I have prepared the motion, citing the applicable laws from the original state, and submitting proper notification for recognition of foreign law.
 
1 - The mother is, obviously, the defendant in this declaratory judgment action. And yet, as such, isn't the action effectively opening the issue of paternity and parental rights for RELITIGATION?

2 - It seems almost like splitting hairs, but in cases of actual controversey in which a declaratory judgment is sought, how can I avoid allowing the issue to become relitigated?

3 - I'm going to try and answer this question myself and suggest that when seeking a declaratory judgment, FACTS themselves are not litigated, but rather only the LEGAL EFFECT as applied to those facts. For example, the fact that both the mother and I performed the administrative act regarding paternity could not litigated unless the defendant claimed that it was the result of fraud or mistake. However, we may both argue our legal theories as to what the legal effect is in regards to having performed the act. Does this sound correct?

_________________________

Finally, I probably should file an amendment to my original pleading. At the time I filed it, I alleged that the defendant committed a wrong-doing (withholding our child) from time X to time Y. However, since the time of the original pleading, the defendant has commenced her harmful acts and they are ongoing. I cant get into court later, seeking relief, and expect the judge to recognize any request for relief from a cause of action that is different than what appears in my pleading.

1. I hope this question isn't too vague, but what elements are necessary to amend a complaint to reflect the resumption and continued nature of the allegation?


Much thanks!


socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Declaratory judgment
« Reply #1 on: Oct 25, 2006, 08:59:42 AM »
>1 - The mother is, obviously, the defendant in this
>declaratory judgment action. And yet, as such, isn't the
>action effectively opening the issue of paternity and parental
>rights for RELITIGATION?

First, if this is a new case, then you're not filing a motion, you're filing a PETITION for declaratory relief. A mtion only happens after the petition or complaint is filed.

You are not relitigating. You are merely asking GA to recognize the administrative act of a sister state. The only fact at issue is the occurance of the act --  not the child's paternity.

>2 - It seems almost like splitting hairs, but in cases of
>actual controversey in which a declaratory judgment is sought,
>how can I avoid allowing the issue to become relitigated?

N/A.

>
>3 - I'm going to try and answer this question myself and
>suggest that when seeking a declaratory judgment, FACTS
>themselves are not litigated, but rather only the LEGAL EFFECT
>as applied to those facts. For example, the fact that both the
>mother and I performed the administrative act regarding
>paternity could not litigated unless the defendant claimed
>that it was the result of fraud or mistake. However, we may
>both argue our legal theories as to what the legal effect is
>in regards to having performed the act. Does this sound
>correct?

Yep. Are you a law student or a paralegal or what?

>
>_________________________
>
>Finally, I probably should file an amendment to my original
>pleading. At the time I filed it, I alleged that the defendant
>committed a wrong-doing (withholding our child) from time X to
>time Y. However, since the time of the original pleading, the
>defendant has commenced her harmful acts and they are ongoing.
>I cant get into court later, seeking relief, and expect the
>judge to recognize any request for relief from a cause of
>action that is different than what appears in my pleading.
>
>1. I hope this question isn't too vague, but what elements are
>necessary to amend a complaint to reflect the resumption and
>continued nature of the allegation?

The only issue you should be seeking to resolve with your declaratory relief is to legitimize the child in GA. Then you can file a petition to modify custody or for contempt or whatever.

 

Copyright © SPARC - A Parenting Advocacy Group
Use of this website does not constitute a client/attorney relationship and this site does not provide legal advice.
If you need legal assistance for divorce, child custody, or child support issues, seek advice from a divorce lawyer.