Ex-Wife Trying to Take My Son Away

[java13]

My question involves paternity law for the State of: Missouri

I have been divorced for 3 years and recently my ex wife has threatened to take my son away from me. She says that she doesn't think I am the biological father. My son is 7-1/2 years old. We have joint legal and joint physical custody. I am the residential parent. At this point I don't care if he is my DNA or not, he is MY son and losing him would destroy me. His mother is using him as a weapon and I'm scared of what this will do to him if she moves forward with her threats. She said she can get a court-ordered paternity test and strip me of my rights. Is this really possible after so many years?

Some additional facts:

My ex can't hold a job, has had at least 1 DUI and is living out of a bedroom with friends. To my knowledge her transportation is in her current boyfriends name. She has a track record as being very irresponsible. The judge even refused to name her as the Residential parent in our divorce. Does any of this lean in my favor?

If I am shown NOT to be the biological father, what rights do I still have?

[Dogmatique]

It is HIGHLY unlikely that a court will disestablish your legal paternity at this point EVEN IF it turns out you're not the biological father.

I cannot see a court disrupting the parent-child relationship as it would NOT be in your son's best interest, specially with you being the residential parent.

Please try not to worry - it sounds as if Mom is playing games.

If you are served with any sort of papers, please post back.

[LawResearcherMissy]

It appears that the state of Missouri bars challenges to paternity after 5 years:

4.3. UNIFORM PARENTAGE ACT

Several courts found that a petition that sought to disestablish a presumed father's paternity, filed more than 5 years after the child's birth, was barred by the statute of limitations in the Uniform Parentage Act.[21] The Supreme Court of Missouri considered this issue in Division of Child Support Enforcement v. T.J. and G.L.T., 981 S.W.2d 149 (1998). In that case, the child support agency and the mother sought a declaration identifying the father of the 14-year-old child, and requested that the biological father be ordered to pay child support. Disestablishment of the presumed father's paternity was an essential precondition to establishing the putative father's paternity. The presumed father was served with the petition and summons, but defaulted. The court found that the disestablishment action was barred because it was initiated more than 5 years after the child's birth.[22]

[21] See e.g. Smith v. Smith, 985 S.W.2d 829 (Mo. Ct. App. 1998); P.L.K. v. N.W.K., 952 S.W.2d 366 ((Mo. Ct. App. 1993); In the Matter of W.C. 671 P.2d 621 (Mt. 1983); Pierce v. Peirce, 374 N.W.2d 450 (Minn. Ct. App. 1985). But, see, Ex Parte Jenkins, 732 So.2d 649 (Ala. 1998) (holding that had the legislature intended the 5-year limitations period to apply to an action to establish the non-existence of paternity, it would have included the term "non-existence" in the appropriate section of the Act).

[22] See also, W.B. and T.B. v. M.G.R., 935 S.W.2d 935 (Mo. 1997), en banc (denying a motion by the alleged biological father and the mother, as next friend of the child, because the petition was filed after the 5-year statute of limitations had expired).

http://www.acf.hhs.gov/programs/cse/...tion/ch04.html

I don't have anything polite to say about your ex's selfish, manipulative actions. But for YOU, I wish you the best of luck.

Try not to fret. Your ex can certainly TRY to take the boy away from you, but from where I'm sitting, a tissue has a better chance in a blast furnace. The courts don't play nicely with people who use children as pawns.

[java13]

Thank you for your replies, they are very much appreciated!

I have talked to a lawyer and their comments follow suit with both of yours. It definitely does provide a degree of comfort to hear a common theme.

It's actually hard to grasp why she has gone to this extreme. She has become increasingly difficult and had made what I considered empty threats before, but a couple months ago when she made a threat to "destroy my world" and take him away, I called her on it and asked what grounds she thought she had and that was when she said he may not be mine.

I am basically just waiting to see if I get anything official.

[aaron]

Another thing: In pretty much every state if the issue of paternity is not raised in the original divorce action, the doctrine of res judicata prevents one party from trying to litigate the issue against the wishes of the other. And most states also recognize equitable parenthood, which can allow a husband who has been in the role of father to a child born within the marriage to assert the right to continue in that role even if mom produces a DNA test showing non-paternity. All that on top of the previously mentioned statute. As your lawyer told you, mom's not in a strong position to try to disestablish paternity.

I've known judges who will happily issue orders that parents are not even to suggest to their kids that the legal father is not the biological father.