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  1. #21
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Ohio has a lot of overlapping provisions pertaining to acknowledgment of paternity, and how and when an acknowledgment may be overturned. The 60 day rescission rule has an exception, as outlined in the statutes below. But here's the rub: The DNA test won't become free merely because somebody files a case. The child support agency has already told you they won't pay for it because paternity has already been legally resolved. So I'm not seeing the point in spending the money to file a court case without first doing the DNA test. I think "wasting everybody's time" is an apt description of what would happen if you filed a case, got an order for a DNA test, and either chose not to act on the order because you still couldn't afford the test or came up with the additional money for the test and had it turn out that the guy who is on the birth certificate actually is the father. It makes no sense to put the cart before the horse.
    Quote Quoting ORC 3111.31. Acknowledgment of paternity affidavit form.
    The department of job and family services shall prepare an acknowledgment of paternity affidavit that includes in boldface type at the top of the affidavit the rights and responsibilities of and the due process safeguards afforded to a person who acknowledges that he is the natural father of a child, including that if an alleged father acknowledges a parent and child relationship he assumes the parental duty of support, that both signators waive any right to bring an action pursuant to sections 3111.01 to 3111.18 of the Revised Code or make a request pursuant to section 3111.38 of the Revised Code, other than for purposes of rescinding the acknowledgment pursuant to section 3111.27 of the Revised Code in order to ensure expediency in resolving the question of the existence of a parent and child relationship, that either parent may rescind the acknowledgment pursuant to section 3111.27 of the Revised Code, that an action may be brought pursuant to section 3111.28 of the Revised Code, or a motion may be filed pursuant to section 3119.961 of the Revised Code, to rescind the acknowledgment, and that the natural father has the right to petition a court pursuant to section 3109.12 of the Revised Code for an order granting him reasonable parenting time with respect to the child and to petition the court for custody of the child pursuant to section 2151.23 of the Revised Code. The affidavit shall include all of the following:
    (A) Basic instructions for completing the form, including instructions that both the natural father and the mother of the child are required to sign the statement, that they may sign the statement without being in each other’s presence, and that the signatures must be notarized;

    (B) Blank spaces to enter the full name, social security number, date of birth and address of each parent;

    (C) Blank spaces to enter the full name, date of birth, and the residence of the child;

    (D) A blank space to enter the name of the hospital or department of health code number assigned to the hospital, for use in situations in which the hospital fills out the form pursuant to section 3727.17 of the Revised Code;

    (E) An affirmation by the mother that the information she supplied is true to the best of her knowledge and belief and that she is the natural mother of the child named on the form and assumes the parental duty of support of the child;

    (F) An affirmation by the father that the information he supplied is true to the best of his knowledge and belief, that he has received information regarding his legal rights and responsibilities, that he consents to the jurisdiction of the courts of this state, and that he is the natural father of the child named on the form and assumes the parental duty of support of the child;

    (G) Signature lines for the mother of the child and the natural father;

    (H) Signature lines for the notary public;

    (I) An instruction to include or attach any other evidence necessary to complete the new birth record that is required by the department by rule.
    Quote Quoting ORC 3111.27. Rescinding acknowledgment.
    (A) Except as provided in section 2151.232 or 3111.821 of the Revised Code, for an acknowledgment of paternity filed with the office of child support to be rescinded both of the following must occur:
    (1) Not later than sixty days after the date of the latest signature on the acknowledgment, one of the persons who signed it must do both of the following:
    (a) Request a determination under section 3111.38 of the Revised Code of whether there is a parent and child relationship between the man who signed the acknowledgment and the child who is the subject of it;


    (b) Give the office written notice of having complied with division (A)(1)(a) of this section and include in the notice the name of the child support enforcement agency conducting genetic tests to determine whether there is a parent and child relationship;
    (2) An order must be issued under section 3111.46 of the Revised Code determining whether there is a parent and child relationship between the man and the child.
    (B) Not later than the end of the business day following the business day on which the office receives a notice under division (A)(1)(b) of this section, it shall contact the agency indicated in the notice to verify that the person sending it has complied with division (A)(1) of this section. If the office verifies compliance, and the notice was sent within the time limit required by this section, the office shall note in its records the date the notice was received and that the acknowledgment to which the notice pertains is subject to recission. The office shall direct the agency to notify the office of the agency’s issuance of an order described in division (A)(2) of this section. On receipt from an agency of notice that an order described in division (A)(2) of this section has been issued, the acknowledgment to which the order pertains shall be rescinded as of the date.


    If the office is unable to verify compliance with division (A)(1) of this section, it shall note in its records the date the notice under division (A)(1)(b) of this section was received and that compliance with division (A)(1) of this section was not verified.
    Quote Quoting ORC 3111.28. Action rescinding acknowledgment.
    After an acknowledgment becomes final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code, a man presumed to be the father of the child pursuant to section 3111.03 of the Revised Code who did not sign the acknowledgment, either person who signed the acknowledgment, or a guardian or legal custodian of the child may bring an action to rescind the acknowledgment on the basis of fraud, duress, or material mistake of fact. The court shall treat the action as an action to determine the existence or nonexistence of a parent and child relationship pursuant to sections 3111.01 to 3111.18 of the Revised Code. An action pursuant to this section shall be brought no later than one year after the acknowledgment becomes final. The action may be brought in one of the following courts in the county in which the child, the guardian or custodian of the child, or either person who signed the acknowledgment resides: the juvenile court or the domestic relations division of the court of common pleas that has jurisdiction pursuant to section 2101.022 or 2301.03 of the Revised Code to hear and determine cases arising under Chapter 3111. of the Revised Code.
    Quote Quoting ORC 3119.961. Motion for relief from paternity determination or support order.
    (A) Notwithstanding the provisions to the contrary in Civil Rule 60(B) and in accordance with this section, a person may file a motion for relief from a final judgment, court order, or administrative determination or order that determines that the person or a male minor referred to in division (B) of section 3109.19 of the Revised Code is the father of a child or from a child support order under which the person or male minor is the obligor. Except as otherwise provided in this section, the person shall file the motion in the division of the court of common pleas of the county in which the original judgment, court order, or child support order was made or issued or in the division of the court of common pleas of the county that has jurisdiction involving the administrative determination or order. If the determination of paternity is an acknowledgment of paternity that has become final under section 2151.232, 3111.25, or 3111.821 of the Revised Code or former section 3111.211 or 5101.314 of the Revised Code, the person shall file the motion in the juvenile court or other court with jurisdiction of the county in which the person or the child who is the subject of the acknowledgment resides.


    (B) On the motion of any adverse party or on its own motion, the court in which an action is brought under this section may transfer the action to the county in which an adverse party resides when it appears to the court that the location of the original venue presents a hardship for that adverse party.
    Quote Quoting ORC 2151.232. Order requiring support of child where acknowledgment of parentage is not yet final.
    If an acknowledgment has been filed and entered into the birth registry pursuant to section 3111.24 of the Revised Code but has not yet become final, either parent who signed the acknowledgment may bring an action in the juvenile court or other court with jurisdiction under section 2101.022 or 2301.03 of the Revised Code under this section requesting that the court issue an order requiring a parent of the child to pay an amount for the support of the child in accordance with Chapters 3119., 3121., 3123., and 3125. of the Revised Code.
    The parties to an action under this section may raise the issue of the existence or nonexistence of a parent-child relationship. If an action is commenced pursuant to this section and the issue of the existence or nonexistence of a parent-child relationship is raised, the court shall treat the action as an action commenced pursuant to sections 3111.01 to 3111.18 of the Revised Code. If the issue is raised, the court shall promptly notify the office of child support in the department of job and family services that it is conducting proceedings in compliance with sections 3111.01 to 3111.18 of the Revised Code. On receipt of the notice by the office, the acknowledgment of paternity signed by the parties and filed pursuant to section 3111.23 of the Revised Code shall be considered rescinded.
    If the parties do not raise the issue of the existence or nonexistence of a parent-child relationship in the action and an order is issued pursuant to this section prior to the date the acknowledgment filed and entered on the birth registry becomes final, the acknowledgment shall be considered final as of the date of the issuance of the order. An order issued pursuant to this section shall not affect an acknowledgment that becomes final pursuant to section 3111.25 of the Revised Code prior to the issuance of the order.
    Quote Quoting ORC 3111.821. Proceedings - finality of acknowledgment.
    If a request is made pursuant to section 3111.78 of the Revised Code for an administrative support order and the issue of the existence or nonexistence of a parent and child relationship is raised, the administrative officer shall treat the request as a request made pursuant to section 3111.38 of the Revised Code and determine the issue in accordance with that section. If the request made under section 3111.78 of the Revised Code is made based on an acknowledgment of paternity that has not become final, the administrative officer shall promptly notify the office of child support in the department of job and family services when the officer issues an order determining the existence or nonexistence of a parent and child relationship with respect to the child who is the subject of the acknowledgment of paternity. On receipt of the notice by the office, the acknowledgment of paternity shall be considered rescinded.


    If the parties do not raise the issue of the existence or nonexistence of a parent and child relationship pursuant to the request made under section 3111.78 of the Revised Code and an administrative order is issued pursuant to section 3111.81 of the Revised Code prior to the date the acknowledgment of paternity becomes final, the acknowledgment shall be considered final as of the date of the issuance of the order. An administrative order issued pursuant to section 3111.81 of the Revised Code shall not affect an acknowledgment that becomes final prior to the issuance of the order.

  2. #22

    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    JUST WANTED TO UPDATE EVERYONE WHO COMMENTED...........well this issue was really eating away at me and I spent my rent money to pay for a dna test. P is the bio dad to my child ....it seems like im the only one shocked. I haven't told anyone yet but P has been spending alot of time with my child and wants to be put on the birth certificate. What forms would he fill out to get that case seen in court i know he has to establish paternity but specifically wat forms

  3. #23
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Quote Quoting diamondndeyruff
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    What forms would he fill out to get that case seen in court i know he has to establish paternity but specifically wat forms
    Read this article "How might a voluntary acknowledgment be rescinded" for more info:

    http://www.co.summit.oh.us/prosecuto...20pamphlet.pdf

    I don't know if this is an accurate article or current, but the last paragraph of that section states that after the 60 days, the only way to get it rescinded is to file a court case to rescind and that you have one year after paternity was established to do this. It suggests some basis for this would be fraud, duress or material mistake of fact.

    I would start by calling the prosecutor's office for the child support enforcement agency in your county. That pamphlet I posted a link to above has the info for summit county. The prosecutor for your county may be willing to help you since it sounds like they will have an enforcement action on their hands if K is unwilling to pay.

    If they are of no help, you can try calling your local legal aid or bar association to find out about pro bono attorneys, but you really need to act quickly if that article is accurate and you only have one year since your child is almost 8 months now.

    If you can't find free representation and can't afford an attorney, then I would go to the family law court in your county and ask about how to file a pro se (meaning you don't have a lawyer) complaint to establish paternity for P and to disestablish paternity for K. The clerks there may be able to help you. You may be able to get a waiver of the filing fee if you are low income, but I think either you or P will need to pay for the court ordered DNA test.

    If all parties are agreeable to this - meaning K agrees he is not the father and wants to be relieved of responsibility for child support and P agrees he is the father and is willing to raise the child and has the resources to pay child support, you may have a good chance. But you have to act quickly.

    I don't see any benefit to the child to keep holding K responsible for paying child support if P is the bio dad, wants to raise the child and has the resources to support the child. The family law judges try to do what is in the best interest of the child and given the facts here, I think the best interest of the child is to have P established as the child's father.

  4. #24
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Quote Quoting diamondndeyruff
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    Thank you so much Penney youve been a big help noone else could answer my ques and I will try to get this resolved before the year mark is up!!!!



    You're welcome.

    However, what Penney didn't bother to explain was that asking at the court-house is going to be a complete waste of time - they CANNOT LEGALLY advise you of what you need to do.

    Period.

    Even if.

    And frankly you got FAR BETTER advice from MKIA.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  5. #25
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Quote Quoting Dogmatique
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    You're welcome.

    However, what Penney didn't bother to explain was that asking at the court-house is going to be a complete waste of time - they CANNOT LEGALLY advise you of what you need to do.

    Period.
    Listen, I know they cannot legally advise people what to do. And BTW, unless you are an attorney licensed in the state of Ohio - NEITHER CAN YOU!

    She would not be asking the clerks for legal advice on what to do. She is asking the question - how do I file a complaint? They clerks at the courthouse CAN LEGALLY tell her HOW to file a complaint by explaining the process of filing and service of process to her.

    She wants to file a complaint to establish P as the father and to disestablish K as the father. Where I live, there are self-help materials that the clerks can refer you to and an area set aside for you to use them. The prosecutor's office of the Child Support Enforcement Agency in her county may be willing to help her, too rather than try to enforce a child support order against a guy who isn't the father. And maybe she can get free advice from Legal Aid or the bar association can refer her to pro bono attorneys.

    I don't know where you live, but where I live, the family law judges are pretty sympathetic to pro se plaintiffs who are trying to do right by their children. We are talking about children here. The family law judges know that. Family law court is not a criminal court. They are not out to punish people. They are out to protect children.

    K isn't the father of the child, doesn't want to pay child support or be involved with the child. Diamond doesn't want K to pay child support if he is not the father. From what Diamond has written, the bio dad P wants to be involved with the child and if he has the resources to support the child with Diamond, how would it be in the child's best interest to keep K in the picture? It would not be. It doesn't take a brain surgeon to see that.

    Quote Quoting Dogmatique
    View Post
    And frankly you got FAR BETTER advice from MKIA.
    Diamond - you need to do all you can do and get working on it fast. If in the end you don't succeed, at least you will have tried your best to get things straightened out. Don't forget to ask if you are low income whether there is a fee waiver for filing and how low your income has to be to qualify for a fee waiver.

    You can also visit your local public library or the county law library to see if you can get more information on how to do this yourself if you find that is what you have to do. The librarians may be able to point you to resources in these libraries that will help you to file your complaint.

    This appears to be the relevant statute:

    Quoting ORC 3111.28. Action rescinding acknowledgment.
    --------------------------------------------------------------------------------

    After an acknowledgment becomes final pursuant to section 2151.232, 3111.25, or 3111.821 of the Revised Code, a man presumed to be the father of the child pursuant to section 3111.03 of the Revised Code who did not sign the acknowledgment, either person who signed the acknowledgment, or a guardian or legal custodian of the child may bring an action to rescind the acknowledgment on the basis of fraud, duress, or material mistake of fact. The court shall treat the action as an action to determine the existence or nonexistence of a parent and child relationship pursuant to sections 3111.01 to 3111.18 of the Revised Code. An action pursuant to this section shall be brought no later than one year after the acknowledgment becomes final. The action may be brought in one of the following courts in the county in which the child, the guardian or custodian of the child, or either person who signed the acknowledgment resides: the juvenile court or the domestic relations division of the court of common pleas that has jurisdiction pursuant to section 2101.022 or 2301.03 of the Revised Code to hear and determine cases arising under Chapter 3111. of the Revised Code.


    If you end up having to do this yourself, one of the things that you can ask the clerks at the courthouse is if they can show you how to find a complaint that was filed under Ohio Revised Code Section 3111.28 in which the plaintiff was successful. These are public documents so the clerks should be able to at least tell you how to search through the public documents. If you find one of these that was successful, read it. That should help you get started. But you need to get started on this NOW.

  6. #26
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Quote Quoting Penney
    View Post
    I would start by calling the prosecutor's office for the child support enforcement agency in your county. That pamphlet I posted a link to above has the info for summit county. The prosecutor for your county may be willing to help you since it sounds like they will have an enforcement action on their hands if K is unwilling to pay.
    That's not how things work in any state. Paternity has been established. A prosecutor's office may be involved to establish paternity where a mother applies for public assistance and no father has been established but in this case neither is the case.

  7. #27
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    But Penney - paternity HAS BEEN ESTABLISHED.

    ETA: urgh. What MKIA said. I have Slow Typing Disease tonight :/
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  8. #28
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Stop trying to give what may be false hope.
    An intelligent hell would be better than a stupid paradise - Victor Hugo

    Do not microwave grapes

  9. #29
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    Quote Quoting Dogmatique
    View Post
    Stop trying to give what may be false hope.
    I quoted the statute and bolded the parts about who has standing to sue and the statute of limitations and the grounds for rescision. You either did not read the statute or are spouting off nonsense because you have nothing better to do.

  10. #30
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    Default Re: Mother Trying to Get Wrong Man Off Sons Birth Certificate (Man Signed Affadavit)

    You quoted a statute that had already been provided, and have been telling somebody she has various sources of free legal help or advice that aren't going to materialize. If you don't know what you're talking about, let others do the talking.

    If you can find a sample petition for her state, to set aside an acknowledgment of paternity based upon a subsequent DNA test after the initial 60 day window, by all means share it. But stop posting nonsense, and stop sniping at people who know more than you do about the law.

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