[jmdoe]

State: Maryland

Need Help! Trying to save my grandson from a nightmare... Here's the cliff notes:

1. Daughter gets pregnant while in college. Father wants nothing to do with the kid.

2. Daughter meets someone else while pregnant, marries him 2 months AFTER child is born. Moves to Hawaii.

3. Puts the husbands name on the birth certificate when child is 9 months old.

4. Husband turns out to be PSYCHO. Bizarre behavior - exposing and touching himself in front of the child.

5. Daughter files for divorce and leaves Hawaii - child is 16 months old.

6. Husband is suing for custody of the child. Since the divorce was filed in Hawaii, the case is being handled there. Preliminary hearing has determined that the ex-husband is the legal father, due to the Birth Cerificate, though both parties knowingly signed it fraudulantly (sp?).

7. We tracked down the biological father, and he is willing to help, though I do not expect any super-human effort.

What I need is advice on how to disestablish paternity in Maryland, because that will torpedo the case in Hawaii. Need to get this done quickly, as the child will soon be 2 and we may not have much choice after that ( a little confused doing research as to whether the magic 2 year time limit to disestablish parentage is from when the Birth Certificate is signed, when the couple is married or from the DOB of the child).

Love my grandson more than life itself, and it seems like every lawyer I've talked to (1 in Hawaii, 2 in Maryland) have never come across a case like this... HELP!!!

thanks in advance...

[Mr. Knowitall]

Does she have a lawyer yet? She needs to get a determination as to whether Hawaii recognizes "equitable parent" doctrine, and whether her husband would qualify. If so, what happens in Maryland may not affect the outcome in Hawaii.

In terms of Maryland, she would have to commence a legal action and thus should consult a lawyer. Paternity was established by affidavit?

(d) Execution constitutes legal finding of paternity.-

(1) An executed affidavit of parentage constitutes a legal finding of paternity, subject to the right of any signatory to rescind the affidavit:

(i) in writing within 60 days after execution of the affidavit; or

(ii) in a judicial proceeding relating to the child:

1. in which the signatory is a party; and

2. that occurs before the expiration of the 60-day period.

(2)

(i) After the expiration of the 60-day period, an executed affidavit of parentage may be challenged in court only on the basis of fraud, duress, or material mistake of fact.

(ii) The burden of proof shall be on the challenger to show fraud, duress, or material mistake of fact.

(iii) The legal responsibilities of any signatory arising from the affidavit, including child support obligations, may not be suspended during the challenge, except for good cause shown.

[jmdoe]

We're going to our 4th lawyer tonight. The lawyer in Hawaii told us not to worry about the case, that the ex-husband had no standing because he was not the biological father and the affidavit of parentage signed for the birth certificate was invalid. She told us the the 'worst' that was going to happen was a perjury charge. Then we go to court for a preliminary hearing...

The judge told us he did not have jurisdiction to disregard the affidavit of parentage and ruled that the ex was the legal father. He advised us that we would have to handle the affidavit of parentage in Maryland. We had a lawyer taking care of this before the initial hearing (he told us we simply had to change the name on the birth certificate), but he delayed submitting the paperwork for more than 30 days (we were NOT happy) and did not submit it until after the initial hearing. He's been telling us 'don't worry' since the beginning, that you could put 'Santa Claus' on the birth certificate and simply remove it because it was done falsely. After doing some research we have come to the conclusion... well, I'll be nice and just say that we decided to get a new lawyer.

The next lawyer was exceptionally good, knew the law well and was not overly optimistic. She lived by the rule that 'if you can't say something nice, say nothing at all' when we told her about our first lawyer. Unfortunately, she does not have the time to take the case within our time contraints, so we are looking for new lawyer.

The big problem we are facing is the fact that there are 2 states involved and the Hawaii judges have shown a reluctance to making a ruling affecting Maryland. The judge also said that without the affidavit of parentage, the ex had no case. The trial is coming up next month, so we would like to be able to show that that the affidavit has been invalidated. We have been told that since both parties signed the affidavit willingly, that it can not be thrown out because it would benefit one party over the other. Seems strange that 2 wrongs make a right, but then again I've found why lawyers earn the money they do - understanding the legal jungle out there. We believe our best bet is to have the biological father assert that his rights were illegally taken from him.

Hopefully our lawyer will have some good answers for us tonight. I'll update this thread as the case unfolds. I never knew the absolute dread and horror that a custody case can generate. This forum is a God-send to people fighting for thier lives..

Thanks for the response and the Maryland law quote. We've seen that before, but I have found that I have no idea what legally constitutes 'fraud' or 'material mistake of fact'. We assumed both parties admitting they signed it fraudulantly would be enough. We are obviously getting an education...

-j

[aaron]

That language suggests that they are referring to fraud against the other party to the affidavit, not a mutual fraud against the state.

[rmet4nzkx]

The Hawaii judge is correct, he must accept the curent status of the Paternity established in Maryland under the "full faith and credit" provision of USC. THat is if paternity was established by court ruling or AOP, if only th ename was changed on the Birth Certificate that is a different story. If you will notice in the MD statute previously cited, there is provision for denying the AOP after 60 days due to Duress. California has a 2 year statute re paternity but even so, the facts of any case may allow different arguments, that is why it is imparative your daughter must obtian competent counsel in Maryland to petition the court to disestablish paternity and name the putitive father then the court may order the appropriate DNA testing, all of which will take time, and once the bio dad is court ordered to submit to DNA testing, there is little he can do but comply.

In the mean time, if the husband has been charged with indecent exposure involving a child and this is not a he said, she said custody battle, it is unlikely that even with husband ruled as legal father that he will be awarded custody and at most supervised visitation in addition to parenting classes, therapy, drug tesitng, anger management all of which will be things the he HI attorney will suggest. Don't forget child support, medical, childcare, plus and other expenses, permission to leave HI, and husband to bear costs associated with visitation, attorney fees, all of which may make husband less likely to push to maintain status of legal father. Another possibility is petitioning the court to appoint a GAL to represent the best interest of the child.