Is It Legal for Paternity to Be Established Twice

[childheartbroken]

My question involves paternity law for the State of: VA

My child's father established paternity shortly after birth by signing an Acknowledge of Paternity and swearing in court that he is the father of our child shortly after birth.

He was active in our child's life for 10 years until he married (our child was the ring bearer in his wedding). Then he requested DNA testing, which found him not to be the father. Consequently, he had his parentage and child support was terminated.

This has had devastating effects on the life of my child, and myself. Is there any recourse in this matter?

After research, I found that an AOP is supposed to be legally binding and not over turned. I also found that my child was supposed to have a guardian et litem, which wasn't appointed for the court proceedings.

What can I do now?

[LawResearcherMissy]

After research, I found that an AOP is supposed to be legally binding and not over turned.

Where did you hear this? In the state of Virginia, paternity may be challenged at any time.

20-49.10. Relief from legal determination of paternity.

An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The petitioner shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for relief from a determination of paternity, but only from the date that notice of the petition was served on the nonfiling party.

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

You can speak with an attorney about the issue of the guardian ad litem not being appointed - are you sure of this? Were you present in court? - but don't expect it to change things. He's not the child's father - biologically or legally.

What can I do now?

Contact the fella who actually impregnated you and get his paternity established.

[aardvarc]

My child's father established paternity shortly after birth by signing an Acknowledge of Paternity and swearing in court that he is the father of our child shortly after birth.

Actually, he swore in court that he BELIEVED himself to be the father. Unless genetic testing had been done, he couldn't have KNOWN beyond all certainty that he WAS the father. (And if genetic testing had been done, then his belief would have been irrelevant.) That's exactly why the law in your state allows paternity to be challenged later - in case what he believed to be true actually wasn't. Did he know at the time that you'd been sleeping with someone ELSE and that the child might not be his?

He was active in our child's life for 10 years until he married (our child was the ring bearer in his wedding). Then he requested DNA testing, which found him not to be the father.

Funny things happen when an assumed parent gets remarried - not the least of which is the new family wanting to make darn sure that any expenses, like child support, are valid. In some states, dad would have had a hard time disestablishing paternity, even though proven not to be the biological father. Those states feel that suddenly switching parents on a child when they're old enough to be traumatized isn't a good idea. Your state isn't one of them. In your state, legislators have determined that the RIGHT father should be paying child support and acting as parent, even if that has negative emotional consequences for the child and long term bonds with the person the child has always known as a parent, shatter. In your state, and state's whose laws closely resemble VA's, unmarried fathers should NEVER EVER EVER acknowledge paternity without testing FIRST - for the sake of the child. And unmarried mothers need to realize that if there is ANY chance that the man who thinks he's the father might not BE the father, that simply picking or accepting the one they want or who is willing isn't really doing to child any favors in the long run - because as you've seen - if the mistake or fraud is later found, the child's whole world can be turned upside down, and you get left holding the bag with a LOT of explaining to do to a devastated child.

Is there any recourse in this matter?

Finding the real father and seeking paternity testing and child support.

After research, I found that an AOP is supposed to be legally binding and not over turned.

It was legally binding, right up until the time that the mistake or fraud was discovered. Mistake of fact or fraud can invalidate almost anything in a legal setting. Paternity can always be challenged. The only question is under what circumstances and within what time frame. Some state have SHORT time frames, some have eternal time frames. Almost all permit challenge, within the established times, when the father ISN'T the father.

I also found that my child was supposed to have a guardian et litem, which wasn't appointed for the court proceedings.

Doubtful that this would have any bearing. The ruling was determined on the facts of the paternity test. Not much a guardian ad litem could have done, even if there from the start. GALs help judges to evaluate potential issues and outcomes when the judge is making a choice between one or more courses of action. Under VA law, if the DNA test says dad isn't dad, and he wants out, then since the state's law explicitly gives dad the right to terminate, the judge didn't really have grounds to deny his motion.

What can I do now?

Find out for sure, legalities aside, if the man known as "dad" all along plans on remaining active in her life emotionally or not, and then, regardless of the answer, get counseling for the child. Don't underestimate how important this can be. The child just had the two people she trusted most in the whole world pull a major fast one on her, and she needs support from someone OUTSIDE of those involved where she can safely express her fear, anger, rage, disappointment, resentment, as well as to get support in understanding that this isn't HER fault (which is going to weigh heavily on her mind at her age).

[Mr. Knowitall]

Doubtful that this would have any bearing. The ruling was determined on the facts of the paternity test. Not much a guardian ad litem could have done, even if there from the start. GALs help judges to evaluate potential issues and outcomes when the judge is making a choice between one or more courses of action. Under VA law, if the DNA test says dad isn't dad, and he wants out, then since the state's law explicitly gives dad the right to terminate, the judge didn't really have grounds to deny his motion.

The court has the discretion to deny the petition based upon the best interest of the minor child, and the GAL can help establish what's in the child's best interest. If mom had custody and didn't participate in the proceedings, and ignored notices to her and the child from the court or petitioner, it's possible that a GAL was appointed but never had the opportunity to meet or speak with the child. The failure to appoint a GAL when required by statute can result in an order's being declared void.

Our Supreme Court has consistently held that a guardian ad litem must be appointed when the interests of infants are involved, see, e.g., Moses v. Akers, 203 Va. 130, 131-132, 122 S.E.2d 864, 865 (1961); Kanter v. Holland, 154 Va. 120, 122, 152 S.E. 328, 329 (1930), and unless the record affirmatively shows that a guardian ad litem has been appointed, the judgment is void. Id. Thus, children who are not made parties to a paternity action are not bound by the judgment.

Once the details are known, if in fact no GAL was appointed, it would be appropriate to discuss the matter with a lawyer to discuss possible remedies, and what might happen if the case were again brought before the court.

[aardvarc]

Problem is that once the order was issued, the damage to the child was done. Even appointing a GAL now won't make the child "un-know" the truth; that the man she thought was her father isn't, and that he ASKED to not be obligated to or legally tied to her any longer. Protecting the child from that outcome (and all the associated fallout) would have been the GALs major argument at the onset in asking the court to deny dad's petition, but there's simply no way that the emotional interests of the child would now be served by overturning the ruling. The other issue is that of support, and the judge doesn't really need the GALs opinion for that aspect. The judge could have denied the petition as being in the child's financial best interest, yet didn't. If those rulings were made in the vacuum of mom's non-participation, the court isn't now likely to find it in the child's best interest to re-visit the matter, now that mom and child, even if after the fact, have seen all the cards on the table. In other words, a GAL isn't likely to find that trying to now have dad ever seen as "dad" in the child's eyes again is so unlikely that the benefit of child support payments won't mitigate that damage, especially when there's an actual father from whom to seek that support.

I'm not saying that a revisit is impossible, only that it's not likely to change the outcome given the circumstances here.

[Mr. Knowitall]

Surmising and speculation is different from explaining the law. I was explaining the law.

[aardvarc]

That's why we make a good team (here and on other boards) - posters get the benefit of verbiage and explanation of both statutory and case law, as well as the potential real-world applications thereof =

win / win !!