Archive for Sunday, July 15, 2001

Custody argument borders on frivolous

July 15, 2001

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Q: After my husband left me and our two young children for another woman, he refused to support us. My employer has given me flexibility in my hours to be with the children at night (my mother keeps them after kindergarten). When I saw there was not enough money, my parents loaned me the retainer fee, and I sued him for support. He has asked for joint custody, saying that he plans to marry the woman he is living with, that she can stay home with the children during the day, that my mother is too old to take care of the children, and that he and his wife-to-be can make a better home for my children than I can as a working single parent. My lawyer tells me that this adds another dimension and more time and expense to my case. Is there anything I can do to bring this to an end?

A: In more than 13 years of writing this column, this is one we have not heard before. It appears to us that courts would not grant custody based upon the patently discriminatory premise that a working parent who remarries will be better able to care for children than a single working parent. If this were the case, divorcing spouses would be unfairly forced to either remarry or stop working. And, going one step further, your husband's theory ignores the known stresses involved when children are required to adjust into a stepfamily household.

While it is difficult for us to imagine that any judge would buy into this far-fetched "best interests of the children" idea, stranger things have happened. Even though we believe your husband's position is so out of touch that it borders on being frivolous, in marital litigation, nothing can be ignored or taken lightly.

Q: Fifteen years ago, I admitted that I was the father of a child by a woman who was not my wife and have been paying support since that time. This woman, who is now dying of cancer, recently called and told me that the child is not mine, but was the product of incest between her and her father, who is now deceased. She told me she could not bring herself to turn her father in, so she blamed me. I was 18 at the time. I am now married and have a child of my own. I have never seen this young man, but feel that I have been violated. Is there a way for me to get out of the child support obligation and recoup my losses?

A: We can't say that we blame you for your feelings, but, depending on where you live, your options may be limited. Some states allow men who have admitted paternity in the past to reopen paternity cases years after the fact based upon evidence derived from DNA testing. Other states have refused to terminate child support obligations even with genetic evidence of non-paternity unless the father did not contest the action because he was led to believe he was the father. Still others bar the reopening of the paternity issue regardless of whether DNA tests show no relationship. Find out from a local lawyer how you will fare.

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