You need to select a lawyer, because you just broke up with your wife or girlfriend (or, more likely, she broke up with you – no difference), have one or more children, don’t know what to do and can’t afford the retaining fee your lawyer wants before she or he starts to work for you.
(Note, 2013 04 14: This blog entry was updated to reflect that the search engine for Fathers for Life has been changed. In this article, the change is invisible on the surface but involves two links that had gone dead.)
Over the years, I received requests for help and advice in so many such cases that I began to type up what are in effect generic answers to generic questions. This blog entry is in essence a collection of the most-frequently used answers.
Here is a typical case from the mail box of Fathers for Life.
Kevin Jamieson [not his real name] wrote:
Hi my name is Kevin Jamieson, I’m emailing you because I need some advice/help. I am 23 years old, I have son that’s 2 1/2. His mother and I are no longer together and my name isn’t on his birth certificate, giving me no rights. I have sought counsel, and she needs a $2000 retainer fee to get started which I do not have. However, she did refer me to Father’s For Life through a man in my community. I have been waiting for a while for there to be a meeting but there hasn’t been one for sometime. In the meantime I had been able to see my son whenever because my ex and I were trying to work things out. This all changed when she physically assaulted me in my home. She is facing three charges and I can have no contact with her. Now the only way I see my son is by setting up visits with her brother. I am confused and hurt. I would like advice on how to do the process of getting my name on the birth certificate on my own, as well as getting regular visits where I can have my own time with him. Please let me know if you can help me.
I would need your location to be able to refer you to a fathers rights organizations close to your home.
Usually I provide generic advice, such as this (the link is to this article), to someone in your circumstances.
I will address a few issues that appear in your message.
- How do you know he is your son? The only way you can be sure of that is to have a DNA test done. Don’t be fooled by what you see in your boy. People have a tendency of seeing what they wish to see. The fact is that in your circumstances the chance that the boy is yours is on average only about two against one. (Check some of the articles at Paternity Fraud)
- “…my name isn’t on his birth certificate, giving me no rights.” That is generally but not absolutely true. Even fathers who do have their name on a birth certificate find that, upon separation, when she doesn’t want the man who is alleged to have fathered her child to have any rights, the father will find that he has no rights.
There is very little remedy in the law. What little there is varies from location to location, that is, from state to state, from province to province and from country to country.
In general, if you assumed the boy to be your son, and if that can be shown to have been the case (even if you know that you are not the biological father), you will be held to be responsible and accountable for the child(ren). Even though you may not be allowed to see the child, you will still have to pay for him. The courts hold that to be in the best interest of the child. In reality, it is not you, as a father, that matters but the taxes you will be forced to pay for having dared to want to be a father. The legal principle behind that is called estoppel. Fathers for Life contains a few articles describing the circumstances of estoppel in more detail.
- “I have sought counsel, and she needs a $2000 retainer fee to get started which I do not have.”
Without paying a retainer you are not likely to be able to hire that lawyer. Still, if you cannot afford a retainer, how can you afford to pay for what else she would have to do? Costs are on average in the order of about $10,000. If the separation and custody fight becomes bitter, you can easily face upwards from $30,000 in lawyer fees (and you will quite possibly have to pay her legal and lawyer fees as well).
It is not likely that you can find a lawyer who will work for you for nothing. Divorce and custody fights are their bread and butter. There is an exception. If you cannot afford a $2,000 retainer, you may qualify for a Legal Aid lawyer. If so, make sure to get one before your ex does. Only one Legal Aid lawyer will work on a given case.
- “However, she did refer me to Father’s For Life through a man in my community.”
I don’t know why she did so. At first glance it would seem that she did because she is honest. If so, she deserves credit for that.
It is not very likely that you can determine all by yourself what the names of the best lawyers are that deal with such issues in your area. Get in touch with one or more local fathers rights organizations, talk to their members and find out through them which lawyers would be best. Then you will have to apply the evaluation and selection procedures I described in these articles:
- Overwhelmed by demands for more child support (tips on what to do before setting out trying to select a lawyer)
- Request for help with excessive child support
- A case of paternity fraud
- Fathers rights organizations in Winnipeg, Manitoba (in spite of the title of the article, it contains generic advice, especially for those who cannot find a fathers rights organization in their locality.)
- “She is facing three charges and I can have no contact with her.”
Facing charges? Have charges been filed against her? Make sure that is the case. However, don’t be surprised to find that your ex will allege that she acted in self-defence and that the judge is more likely to believe her than you.
Lawyers call false abuse allegations (especially false sexual abuse allegations) “The silver bullet.” That is because those allegations never fail to get their man. Never forget that judges are lawyers, too.
- “…the only way I see my son is by setting up visits with her brother.”
Does the restraining order specify “no contact” only with her, or does it include the boy? If the latter is the case, you are breaking the law with such “visits”. If she finds out, she will surely have the courts hold that against you.
The consequence of that will be that you lose your chance of getting even minimal visitation rights (at best one weekend ever two weeks). You will most likely be ordered to have supervised visitations of once or twice each month, one or two hours each (at a cost of from about $125 to $200 an hour), during which you will not even be allowed to hug your son.
- “…how to do the process of getting my name on the birth certificate on my own…”
For that you must make the arrangements through a lawyer. The circumstances vary enormously from jurisdiction to jurisdiction. You may be able to accelerate that through refusing to accept paternity. She will then have to prove that you are the father. That may help a bit, but that strategy must be discussed with your lawyer.
- “…getting regular visits where I can have my own time with him.”
Be careful that those regular visits won’t take the form of supervised visitations.
If she is reasonable, she will just let you pick up the boy whenever you are supposed to. If she does not want that, and if she is a physical danger to you, you can make arrangements to have her drop off the boy at a relative’s or trusted friend’s place. Still, that, too, requires her to be reasonable.
The best plans for such child exchanges or any other visitation arrangements are not worth anything if she doesn’t want to play along. If she doesn’t play along, there is no recourse for you but to take her to court, time and again.
Much of that can be avoided if the child-exchange or visitation procedures are spelled out in the court order, but even then she will be able to ignore that with impunity. It is extremely unlikely that she will be punished for violating the provisions of the court order for visitation, with one exception. The court order for visitation must contain an order to the local police to assist you in getting your visitation rights enforced if that is necessary. The police are likely to do nothing for you, unless the visitation orders specifically instruct them to do so if necessary.
There is one more thing I must mention. You must without delay file an injunction against her that will order her not to move out of the state or province in which you are located. Such injunctions are usually only temporary and should be renewed until you have a court order in hand that spells out to her that she is not permitted to move away. I know a few North American fathers whose children were abducted to Europe and even to Australia. The advantage of having such an injunction, or to have a paragraph in the child custody and visitation order that specifies that she cannot move away is that if she does so, she can be charged with kidnapping and you can have the child returned to you.
The trouble with all of the advice I gave you is that if you use any of it, you are bound to make her very angry. The worst enemy is an angry one. However, she declared her war against you, and you need to defend yourself, unless you change your name, get false papers and move to another country that does not have a reciprocal agreement with yours to deport you if you are sought for child support obligations.
I strongly suggest that you learn how to navigate the website of Fathers for Life. The home page contains some instructions on that: How to navigate that website.
Whatever thoughts come to your mind that you wish to find more information on in connection with your paternal rights or relationship with your ex, chances are good that you will find something on it at Fathers for Life.
I hope that all will work out well for you,