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DNA test???

Discussion in 'Paternity Law & DNA Tests' started by Myork, Apr 21, 2016.

  1. Myork

    Myork Law Topic Starter New Member

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    Jurisdiction:
    Tennessee
    I was married in 98, and we separated for 2 months in early 2001. Right after we had gotten back together we found out I was pregnant and my husband and everyone that knows us (except our son) knew that there was a chance the child was not his. Our son was born rather quickly and my husband was not at the hospital at the time. Our son had to be transferred right after birth and we were told he probably would not make it so I barely filled his birth certificate paperwork out as I walked out the door 5 hours after he was born, we ended up having to add fathers info the birth certificate when our son was a little over 3 years old. Before we did it we talked about it and my husband didn't want a DNA test. Our son did make it and is now 14.
    We separated again in 2012 and in 2013 my now ex filed for divorce but even tho he had all contact info for me, my mother, sister, dad, grown daughter, and all my friends I was never served and he was granted a default judgment I guess. Our son is autistic and has behavior problems in 2013 he was in a residential facility for these issues and stayed 14 months. My ex had ask for full custody and my time with our son be based on the recommendation of his therapist and he was granted that. His Dr recommend that he live with me and see his dad on weekends and since May 2014 he has been in the home with me. I found out in Sept of last year that my ex had been receiving disability based for our son due to his issues since Feb 2013 which is when he went to the residential facility and has not lived with my ex since prior to that.
    My ex stopped seeing him in Dec and I was served with with papers wanting his name off the birth certificate and claiming that I perpetrated fraud. The papers I received also included DNA test results from some at home kit, which he cant use. We were at the court house last week and his lawyer came up and told me he had filed the day before to ask for a DNA test. He ask if I was OK with it I said yes but he has to be in court for that next week, so it has not been ordered yet. And I'm thinking now I might need to challenge that. My ex doesn't pay child support and my issue with this is my son loves his dad more than anything and he was a great dad and my sons already hurt because he hasn't seen him. Doing that test is going to bring up so much more for him. Can I challenge that still?
    I am so sorry this is so long
     
  2. ElleMD

    ElleMD Well-Known Member

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    If the test was ordered and you agreed to it, (why you would do so if it would be as upsetting as you say I have no idea), it is basically a done deal. What you tell your son is up to you. If you do not have a lawyer, you should retain one. If you known who the "real" father is, you should have informed him 14 years ago, but I would suggest doing so sooner than later.

    There is a LOT missing from your story. You can not be divorced and not know it. It also doesn't even make sense you would have no clue at all it was on the horizon and would not have spoken with the man with whom you were raising a child about any of this.
     
  3. Myork

    Myork Law Topic Starter New Member

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    The test has not been ordered yet. The motion will be heard next week. And yes you can be divorced with out knowing. Since i was never served they had to run it in a paper and they choose the hamilton county hearld, a paper i had never heard o. Then they went beforr a judge and ask for a default judgement. So nothings missing
     
  4. ElleMD

    ElleMD Well-Known Member

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    In order to be served, he would have to know where you are. Not family members. Not friends. Being served legal documents is not like passing notes to friends of friends in middle school. If it was published in an inappropriate venue, or he knew where you were, you have decent grounds to challenge the divorce and anything that might have been ordered as a result. There are time limits and it isn't clear when this happened or when you became aware of it.

    If the motion is being heard next week, you certainly can challenge it. Have you tried actually talking to your ex?
     
  5. Myork

    Myork Law Topic Starter New Member

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    He knew where i was and he never mentioned to me or our daughter who was with him that alot. The paper they ran it in can only be purchased at the courthouse. The time limit is up on that but hes now claiming there was fraud concerning our son.
     
  6. army judge

    army judge Super Moderator

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    Once the paternity test is completed, the truth will be revealed.
    Who doesn't want the truth to be known?
    Justice will be served.
     
  7. Myork

    Myork Law Topic Starter New Member

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    Its not the truth i have a problem with, its hurting my son. My ex added his name to his birth certificate when he was 3 and said over and over he didnt want the test.
     
    Last edited: Apr 21, 2016
  8. army judge

    army judge Super Moderator

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    Ma'am we all change our minds.
    Unless you were legally married at the time of the child's birth, an affirmative act such as an acknowledgment of paternity by signing a birth certificate can be trumped or reinforced by a paternity test.

    However, as was said before, the court has spoken evidently.
    The test can't be prevented.
    So, wait and see what the paternity test reveals.
    I advise clients to let the science complete the circle.
     
    Myork likes this.
  9. ElleMD

    ElleMD Well-Known Member

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    You were married at the time of the birth so this guy is the legal father so filling out the birth certificate was just a formality. You really need a lawyer as child support is not your only potential legal problem.
     
  10. Myork

    Myork Law Topic Starter New Member

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    We had been married for 3 years when he was born
     
  11. Myork

    Myork Law Topic Starter New Member

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    And the test has not been ordered yet. The hearing on the motion is next week
     
  12. army judge

    army judge Super Moderator

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    Okay, thanks for the update.
    Legally the kid is his, unless the paternity test says otherwise.
     
  13. ElleMD

    ElleMD Well-Known Member

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    Your state also allows for a separate course of action for fraud should the child not be his and you made him believe the child was his. The burden would be on you to prove you had no earthly idea the child was anyone else's and you had been totally open with this guy that he was likely not the father. You've also got a kid with a biological father out there who presumably has no idea he has a child. Given that your son has substantial medical issues, that genetic and family history information could prove valuable. It is a bit much to expect this guy to continue to play along and support a child who isn't his because you don't want to admit the truth. Sure it would be great if he decided to keep a relationship with the kid, but that is separate from paying child support.
     
  14. army judge

    army judge Super Moderator

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    A lie only sedates the truth, because the truth can't be killed.
    The truth yearns to be set free.
    The truth isn't harmful, it's the misdeed that destroys us.
     
  15. Myork

    Myork Law Topic Starter New Member

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    The other man has always known about the chance too. Its not something we had hidden, our families and friends have all known from the beginning.
     
  16. army judge

    army judge Super Moderator

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    The paternity test will confirm the biological father.
     

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