- I have a child support order from another state for two kids that I found out aren’t mine. How do I go about stopping this order?
- Are there laws that govern when, and/or if, you are able to evict a spouse?
I have a child support order from New York for two kids that I found out aren’t mine. How do I go about stopping this order?
Unfortunately, it is not as easy as submitting the DNA test results to the court to eliminate a child support order. In fact, many states have declared that a DNA test alone is not sufficient to vacate a paternity determination. Family courts are courts of equity and if the biological father is not produced, the courts may completely overlook your victimization because the court is focused on the best interest of the child. What is in the child’s best interest may be to continue to require you to support the child, even though you know you are not the biological father.
How you approach changing and stopping the order depends how, when, and where the current order was issued. Child support may be ordered when a court enters a judgment of annulment, divorce, legal separation, or paternity, or when the court approves a stipulation between parties. The court can order one or both parents to pay child support. While the child’s mother is always known at birth, the process for determining the father may vary depending on the facts of each case. Each state has different guidelines for contesting paternity in default paternity actions, stipulated paternity actions and in marital presumption cases.
If the child support order is from a paternity action, the action would have concluded with a judgment of paternity. While many judgments are based on genetic tests taken of both parents and the child, the judgment may have been a default or stipulated judgment. A default judgment is entered if a party fails to appear at a hearing. In this situation, the mother named you in court as the father and because you were not there to deny it, a default paternity judgment is ordered. A stipulated judgment is entered if the respondent is an alleged father and he stipulates that he is the father of the child. In this situation, you likely would have signed a voluntary acknowledgement of paternity (VAP). Additionally, in most jurisdictions, paternity may be established by marriage, even if the husband and wife were separated for significant periods of time. By statute, the man married to the mother at the time of the child’s birth or conception is presumed to be the father of the child. Also, if the mother marries after the child is born, and no other man has been adjudicated the father, the man the mother marries may be presumed to be the child’s father. If these presumptions remain unrebutted, you, as the husband, would be established as the father.
Because the reason for stopping the child support order relates to the judgment and paternity determination, the legal action necessary would be to reopen the judgment. In many jurisdictions, judgments may be reopened for a set time, such as within one year of the initial entry. Following that time, a judgment may be reopened for good cause, or for various other grounds including mistake, fraud, misrepresentation, or some other grounds justifying relief. Even then, the motion must be made within a reasonable time.
If this timeframe has passed, the only recourse would be to seek to set aside the judgment based on fraud. In order for you to succeed in a fraud claim, you must prove that the mother committed fraud. This is not to be confused with a woman who mistakenly names a man who later turns out to not be the father. The elements of fraud require you to prove that she knew you were not the father at the time that she named you, that she told you that you were the father, and that you signed an acknowledgment or agreed to the judgment based on her statement. To succeed, you will need evidence showing that she knew you were not the father at the time.
In addition to proving that the mother committed fraud, it is important to also identify and locate the biological father. Even if you can prove you are not the biological father, the court may not change the judgment. The court is concerned for the financial support of the child; providing the alternative means of support combats the best interest of the child argument. It is unlikely that the court will remove you as the father unless there is another man it can name as the child’s father.
You mention that the child support order is from New York. If the judgment is also from New York, the motion to reopen or the action for fraud most likely needs to be brought in New York. I do not practice in New York, so, I cannot inform you as to their specific laws. If the judgment was registered in your home state of Illinois, you may also have some options in Illinois. You should contact a domestic litigation attorney licensed in Illinois or New York immediately to explore your options. Cordell & Cordell has attorneys that are licensed and located in Illinois, and they would be happy to discuss your case with you.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell P.C. where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.
What are the laws in Texas regarding getting a spouse out of the house? I can’t afford to file for a divorce at this time, I just want her out. She’s back to doing drugs and we have a young daughter. I am wondering if I can make her leave or if I have to have her evicted through the court?
In Texas, there are several laws and statutes that govern when, and/or if, you are able to evict a spouse. Additionally, several factors can play an important role in whether or not such a request will even be entertained without court intervention, such as whose names appear on the mortgage or deed, or if the property was owned prior to marriage by one of the parties separately, etc. As your questions did not specify what the dynamics of the situation are, I can only provide a generic response to your questions.
You may obtain a consensual agreement signed by both parties providing that your spouse will leave the house. As this option seems unlikely in your situation, the next option would require court proceedings, or at the very minimum a state agency’s involvement, to require your spouse to leave the house. Several issues such as potential harm or injury presented to your child, or actions which are illegal and open liability for both parties, may be considered in determining whether or not she should be refrained from her remaining in the home. Any one issue may be sufficient to have her leave the home without initial Court intervention or filing of divorce. This option is unpredictable and is not a reliable method for obtaining sole use of the property, while retaining possession of your child.
My suggestion would be to consult with an attorney and make them aware of all the concerns that currently exist. As there are allegations of drug use, you may be able to obtain the desired result without the full expense of divorce proceedings.
Although I practice law in Texas, I cannot give you legal advice without thoroughly reviewing your case. Do not rely on this information as establishing an attorney-client relationship. Contact an attorney immediately for assistance. Cordell & Cordell, P.C. does represent clients in Texas. Thank you for submitting a question to Cordell & Cordell, P.C.
Samuel M. Sanchez an Associate Attorney in the Fort Worth, Texas, office of Cordell & Cordell P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Sanchez is licensed in the state of Texas where he is a certified mediator, interview/interrogation specialist, and is appointed by Gov. Perry to the Board of Regents for Midwestern University. Mr. Sanchez received his Bachelor of Arts from Texas Tech University, and received his Juris Doctor from Wesleyan Law School in Fort Worth, Texas.