Oops: Wrong father

[colleen3]

We just recently found out that my eight year old daughter is not the child of the father who is listed on her birth certificate. (he signed a declaration of paternity at the time-CA) Her real bio. dad is my ex. from a couple weeks prior to her conception (so, I thought) I ran into him last year and after seeing his other daughter (by a different relationship), we did a home paternity test that came back positive. I was truly shocked and now must fix a big mess. The father listed on the certificate has been paying the state (when I was on welfare) and me child support off and on but I have now closed the case and returned to him at least what I still had in the bank (it's not right for me to continue getting it) Anyways, I have a few questions from all this. First off, can he get his debt to the state removed? Do I need to pay him back all past paid support? I ask because I don't work right now and it would be difficult to do as I have two other kids also. Also, my biggest question is, can I put the 'newly found father' on the certificate? He is excited to be the father and upset that he has missed out on the last eight years. Although both men are good guys, I would like the CORRECT father on the certificate also. I no longer live in California (or in the USA for that matter) so how do I go about getting this fixed? Any help or direction would be great. I hope I made sense, if I need to clarify anything, please tell me.

[Mr. Knowitall]

Setting aside the Voluntary Declaration of Paternity will require a court action in California.

It is unlikely that the state will agree to waive the arrearage owed by the father previously identified on the birth certificate, even if the acknowledgement is set aside and a different person added.

[colleen3]

Thanks for your help.

[rmet4nzkx]

Your question raises far more questions than we can answer.
First of all, in CA there is a 2 year limitation re contesting paternity, however there are exceptions to this statute when the legal father did not know that they were not the biological father of the child. This is further complicated by the fact that you were on welfare and there was no DNA test ordered by the court based on your misrepresentation of the child's paternity. This is called welfare/paternity fraud.

While you may have not know who the father was for sure, you knew there was a question and did not sign the AOP in good faith and collected or caused the state to collect child support based on your bad faith and fraud. While it is right to pay back what you can, it is also obvious that you have not been contributing to the support of your children yourself since you have been dependent on the state for welfare and not working.

What kind of a relationship has legal dad had with his child? Have you interfered with that relationship? You say you don't live in CA anymore, where do all of the parties live and for how long? CA would still hold jurisdiction unless there was a change of venue but you wil still have to file in CA to establish paternity by DNA and you may be required to repay the state for the welfare you collected by your fraud, legal dad may be able to sue you to collect the child support you collected based on your fraud. You can contact the family law facilitator's office in the county where your child lived and paternity was established to begin to unravel this mess.

[aaron]

I doubt that there would be a case for welfare fraud, where the mother identifies a person who is actually a potential father and the father does not object or request genetic testing. This type of mistake happens a lot. Further, from the facts she gave, it does not appear that a correct identification would have affected her welfare benefits.

[rmet4nzkx]

I doubt that there would be a case for welfare fraud, where the mother identifies a person who is actually a potential father and the father does not object or request genetic testing. This type of mistake happens a lot. Further, from the facts she gave, it does not appear that a correct identification would have affected her welfare benefits.

As I said, the post raises more questions, but there are definate indications of both welfare and paternity fraud.
OP would have known that she had sex with another man during the time of potential conception, but the man who eventually signed the AOP did not have this knowledge and thus OP' s bad faith and misrepresentation lead to the filing of the AOP which in essense established the right to collect child support for the state or parent. An AOP doesn't always establish paternity in unmarried parents. Here is a link to CA for parentage issues. http://www.courtinfo.ca.gov/selfhelp...ntageforms.htm These forms are signed on penalty of perjury. Here is case law, Navarro decision which also involves paternity fraud. http://caselaw.lp.findlaw.com/data2/...es/b155166.pdf

When a woman is pregnant and applies for welfare, she is required to name the father/s and then the state files paternity actions based on those data. If she is not sure or there is more than one possibility, then the court will order a DNA paternity test unless there is an AOP signed by both parents. Another opportunity for a little lie or omission to become a fraud when the mother knowingly misrepresents the facts. The state and the putative father in this case, in good faith move forward based on the fraud.

We know something happened because OP moved and "discovered" the true paternity and at some point, "forgave" the child support obligation, but there were obligations to the state which she could not forgive or repay. Therein lies the problem. It became potential welfare and paternity fraud when she withheld the facts that there was more than one putative father and did nothing to discover the true paternity until years later at which time it became fraud when she proved paternity via private DNA test. Until this goes to court, there are several potential outcomes dependent on the facts. In CA a child support order can affect more than just garnishment of support, it can affect a license, it also may affect the quality of life of other children.

The legal father can contest paternity and depending on the facts may be able to recover some costs and support payments made. Since OP was on welfare the state can recover what they paid for but they may be limited in who will owe that money once the legal father's paternity is disestablished in court because they will not be able to retroactively collect support from the bio dad unless he participated in the fraud.

We don't know all the facts other than OP needs to contact the FLF office in CA to begin to respolve this ASAP.

I have previously posted references to CA statutes re paternity and the 2 year rule and it's limitaitons.

California Supreme Court Prohibits Retroactive Paternity Child Support! - On June 25, 1998, the California Supreme Court handed down a very important decision in, SANTA CLARA v. DELMER L. PERRY, regarding child support and retroactivity. The Supreme Court decided that in child support cases involving paternity, the District Attorney/courts cannot make any order retroactive to before a motion/OSC has been filed requesting an order of child support, nor before paternity is established. In short, if the father is not the father legally for the father to see the children, the father is not the father for the mother to request child support.

[aaron]

Again, this type of mistake happens all the time. And the normal government response is to tell the man who previously acknowledged paternity, "Sorry - you had a chance to request a DNA test at the time and chose not to do so."

Do you know of even one case like this, anywhere in the country, where the mother was charged with welfare fraud for naming the wrong putative father? Where the mother was made to repay benefits received when, years after-the-fact, the man who acknowledged himself to be the father learned he was mistaken? If so, please direct us to that case.

[rmet4nzkx]

This wasn't a "mistake" she failed to name both or all potential fathers when she applied for welfare, they actually ask these questions, had she done that, the court would have ordered the DNA test. This is considered fraud as discussed in the Navarro case. She has admitted that what she did was wrong and I told her how to go about addressing a resolution through the courts. More than likely the legal father can get his paternity disestablished and his debt to the state forgiven, then it is up to the state of CA how they want to pursue the issue with a woman who comitted fraud and no longer resides in the USA. This whole issue of AOP and the 2 year rule for paternity in CA is in great flux currently the courts are allowing the disestablishment of paternity outside of the 2 year rule when based on fraud or mistake and most of the cases re paternity issues are confidential in most or all California counties except to the parties and the courts so case law would be limited to appeals and such as Navarro. We have no other facts until OP comes back and answers some questions..

[aaron]

Navorro involved overturning a paternity order, entered by default. It did not involve the overturning of an acknowledgement of paternity, and did not involve a father who waived his right to DNA testing. It did not involve any prosecution of fraud against the mother, nor did it involve any requirement that she repay welfare benefits to the state.

Whatever may occur with confidentiality in paternity cases, criminal prosecutions are public. So I remain disinclined to endorse the litany of potential horrors you predict, absent documentation of even a single case where any such result occurred.

[garrula lingua]

Sometimes, people can be better than the state would allow.

Is the bio-dad willing to take over the debt to the state ?
He can pay non-dad's bill, in non-dad's name (gov isn't quick (if at all) to correct miscarriages of justice, but people can rise to that.

You did the right thing in closing your case with CSE.
If bio-dad is honorable, he will sign a contract with you to pay you XXX amt of child support per month.

As it was your error also, if bio-dad won't pay the welfare reimbursement to the State, then you should pay in non-dad's name.
Try to make a lump-sum pmt to close it out.

Find out how much non-dad owes in welfare reimbmt.
Call CSE & tell them this story.
The law does not allow them to do the fair and just thing, but they can help by getting the $ amount info for you.

You sound as though you want to correct this injustice.
You realize the gov can't correct it, but YOU CAN.

Do your honest best to make amends and resolve it.
At a minimum, take on non-dad's bill to the county.