It’s all over but the crying…….
Now you have a baby and the relationship is over. Do you need a divorce? Or is something else in store for you? In Oklahoma we still recognize common law marriage. So, it’s possible, though you didn’t walk down the aisle, buy a ring, invite a hundred guests and spend a ton of money to have a big wedding, that you were in fact married. However, it’s just as likely, that you weren’t. There are many factors to look at when considering whether or not your union was recognized in the state of Oklahoma. The easiest way to recognize this is to ask yourself, “were we married?” If your answer is no, you probably weren’t. If yes, then you might have been. The court will look at many factors to determine this, including tax returns, whether or not you file jointly, joint bank accounts, utility bills, and etc. For purposes of this discussion, we’re going to assume that you were in fact not married and that you were living (or staying) with someone of the opposite sex for some period of time at least sufficient enough to have had a child.
We’re going to examine this from the perspectives of both mom and dad. We’re going to start with mom. Now, most women who find themselves in this position, unmarried single mother, they tend to need help. They need help both financially and emotionally, and they may or may not be getting it. The law says your child is entitled to the adjudication that his father is in fact his father and the entitlement to Court ordered support.
What is most typical of people who come to my office is that they have already visited with the Department of Human Services. However, from both dad and mom’s perspectives, I am not sure that DHS can offer answers to all the questions. For instance, their sole jurisdiction is over the child support issue, in other words they cannot and will not issue any orders as to custody and vistation. They don’t have the jurisdiction and an administrative body is not empowered with the ability to make those types of decisions such as who (mom or dad) should have custody and when the other one, that doesn’t have custody, should have visitation.
This is where the Petition to Establish Paternity is a useful tool. It is likened to a divorce but it is for people who are not married but that do have children together. It functions similar to a divorce. One party sues the other for a petition to establish paternity, either mom or dad. Now, a lot of people get confused when they come into the office, they often say “oh, we already signed the form at the hospital.” Well, no you didn’t. You might have signed an acknowledgement of paternity at the hospital, you may have even attended a DHS administrative hearing and at that hearing they may have even found that you were the father and paternity may have been established, but big deal. Did that give you Thanksgiving visitation or Christmas Eve or your son or daughter’s birthday with them? No, it got you child support obligations. So what we are talking about is the actual function in district court, which will establish all of the paternal rights. That includes the visitation rights, child support and so on.
Oklahoma has turned away from what we call The Tender Years Doctrine, or in other words that “mothers are somehow more capable of taking care of children while children are very young”. That type of case law and legislation has gone away in Oklahoma and we adopted a much more opened minded and new day perspective wherein fathers are just as capable and should be allowed “substantially equal visitation” with their children. The new temporary order statutes in divorce law say that the Court shall start at substantially equal time and work away from that for good cause shown. Whereas ten to fifteen years ago a gentlemen may have felt that it was an uphill battle for him to come into Court and fight for his ability to spend equal time with his children, now the Courts say that they are going to start with each party having “substantially equal time” with the child unless there is good reason not to have such a schedule.
The process for a petition to establish paternity, much like a divorce, begins with a petition being filed, being served upon the other party, and the we have a temporary order hearing set fairly quickly in the future, usually about thirty days. At that hearing, we try to establish, if we can, by agreement, the paternity of the father. If we can’t, then we will have the Court order a genetic test and we continue the temporary order for review in about sixty days. If all parties can agree that dad is in fact the father, then we move forward with the issues, like custody, visitation, child support, tax exemptions, holiday visitations, etc. The more that is established at that temporary order (the first order) the better because it will allow less to be decided in a final order. If it’s hotly contested, however, as many of these are, and virtually nothing can be agreed upon, then we go in and have a hearing in front of the Judge who will decide the issues of custody and visitation. Many of those other issues will be left for what we call a trial on the merits. Depending on what county you are in, this could be any where from a couple of months to a year down the road before you are heard on your trial on the merits.
The point of today’s blog is simply that if you are the father or the mother, depending on your situation, you might feel that you have a lot to complain about. The upshot is that you have this bouncing new baby to be happy and proud of so enjoy them. If you are from the father’s perspective feeling that the mother is making all the decisions and calling the shots, has all the control and all you are wanting to do is see your child, this is a good vehicle to get you your visitation time with your child. From a mother’s perspective, you’ve got the whole world on your shoulders, all the responsibility, you need some help and DHS is not getting the child support to you quickly enough, this is a great vehicle for you. Here, when you hire a private lawyer to do this petition to establish paternity, we can take your case on a one on one basis and move it along so that hopefully we would have some results in a much quicker time frame. This can bring you the peace of mind of having child support assistance quickly. Additionally, if your significant other fails to make that child support obligation, we would be able to assist you in enforcing that Court order with the Court’s contempt powers and other resources available.
Thanks. I hope this was informative. If you have any questions please do not hesitate to post them. Thanks again.
Lawrence Goodwin – Oklahoma City Divorce and Family Law Attorney
1315 N. Shartel
Oklahoma City, OK 73103