Month: November 2013

Paternity 101

ESTABLISHING PATERNITY: 101

If the need ever arises to seek child support, a finding of paternity is required before a support order can be established, if a child is born to unmarried parents.  Even if the parents plan to marry after the baby is born, establishing paternity as early as possible protects the father’s relationship with the child from the very beginning.

A father can acknowledge paternity on his own by signing a written admission or voluntary acknowledgement of paternity.  An acknowledgement of paternity ultimately becomes a finding of paternity after 60 days, unless the man denies that he is the father before that time.  A finding of paternity based on an acknowledgement generally may only be challenged based on fraud, duress, or material mistake of fact.

Each state has a program where the hospital gives unmarried parents an opportunity to acknowledge the father’s paternity at birth.  Each state is also required to assist parents in establishing paternity until a child turns 18, through offices such as vital records.

When necessary, paternity can be established through a court or administrative hearing.  If a man is served with notice of a paternity hearing and does not appear, paternity can be established by default.  If a man is not certain that he is the father of a child, he can request that genetic testing be arranged.  Genetic tests are easily administered and highly accurate.

Establishing paternity is very important.  Once accomplished, the child gains legal rights and privileges, including inheritance rights, access to the father’s insurance benefits, social security benefits and veteran’s benefits, if applicable. Furthermore, the child’s medical history will be more complete, which assists physicians and other healthcare providers in properly treating the child.  More importantly, the child will be able to develop and nurture a relationship with his or her father and gain a sense of identity.

Call our office today for a free consultation to discuss this and any other issues, (205) 988-5570.

 

Visitation Issues

WHAT ARE MY OPTIONS IF MY EX WON’T LET ME SEE MY CHILD?

After a divorce, there are always lingering issues and potential problems. When there are children involved, those problems can be magnified.  Yet the most frustrating and emotionally draining concern is an ex-spouse who refuses to let you see your children.  Rest assured, you are not alone, and there are things you can do to work things out.

Step One:  Try to talk reasonably with your ex.

After a divorce where children are involved, child custody should have been determined and visitation rights established.  The first step to working out child visitation issues, after the dust has settled, should always be to talk to your ex about your visitation rights. Approach the issue calmly and reasonably.  Many times these issues can be resolved by both parties without having to return to court.

Sometimes, the problems or misunderstandings that occur regarding visitation come from a lack of specifics in the visitation order itself.  If the terms of the order are too vague, conflict regarding certain terms will arise.  An unclear visitation order also makes it difficult to show to the court, if necessary, that your ex is violating the order.  If this is the case, the solution may be to ask the court to modify the order and include more specific terms.

For example, if there seems to always be a disagreement about what time your children should be picked up or returned to the custodial parent, then a modification of the order that sets specific times could go a long way to resolving that issue.  Sometimes, however, the problems are more complicated.

Step Two: Involve the Court if your ex refuses to cooperate.

In some cases, no matter how reasonable or compromising you may try to be, there is just no way to reach an agreement.  That is when you must turn to the court for help.  A visitation order is a binding court order with which both parties must comply.  Therefore, if your ex is clearly violating the terms of the order, he or she can be found in contempt of court for failing to comply.

At that point, you should contact an attorney to assist you in filing the proper documents with the court, explaining how your ex is violating the order and requesting that the court require him or her to comply.  There are several remedies available, which your attorney can explain to you.  Don’t give up your rights.  An experienced family law attorney can help you resolve these and other divorce related issues.

Contact our office today for a free consultation, (205) 988-5570.

Alabama Case Law Update–Post Minority Support

For the past 24 years, since the case of Bayliss v. Bayliss was decided, child support awards have included post-minority support for college. In other words, even though under Alabama law your child is no longer a minor after reaching age 19, a non-custodial parent could still be required to provide support for college expenses. In a significant Alabama Supreme Court decision, handed down on October 4th, college expenses are no longer a factor in child support awards.

The rationale behind the Bayliss decision.

In 1989, the Supreme Court interpreted Alabama’s child support statute to allow for post-minority support for a child’s college education. In doing so, the Court essentially created new law, as the statutory age of majority in Alabama is 19. In Bayliss, the Court determined that the statutory term “children of the marriage” did not refer only to minors, despite the long-standing construction of the statute to the contrary. Since the decision 24 years ago, courts have continuously expanded the ruling to include other expenses tied to college education.As Stephen Johnson, chairman of the Family Bar Section of the Alabama State Bar Association, has pointed out, “[t]he Bayliss case has been the subject of controversy for the last 24 years.”

Christopher v. Christopher expressly overruled Bayliss.

In reaching its decision, the Alabama Supreme Court in Christopher pointed out that there have been no new statutes relating to children or child support which changed the definition of “child” since the Bayliss decision. The Court stated in its conclusion:

“The Bayliss Court failed to recognize the ordinary and common-law definitions of ‘child’ as a minor, did not defer to the Legislature’s designation of the age of majority, and failed to observe the canon of construction that courts cannot supply what a statute omits. Accordingly, we expressly overrule Bayliss.”  The Court also explained that “reversing Bayliss and returning the Legislative power to decide if post-minority educational support should be authorized in a divorce case, does not make new law but, instead vindicates the old one from misrepresentation.”

What about prior awards of college support?

The Supreme Court was clear that this decision will not affect final post-minority educational support orders which were entered before this decision was handed down. However, any future decisions will be overruled.

Please contact our office at (205) 988-5570 if you have further questions.