Father’s Rights and Paternity

You are NOT the Father! Can you sue to recover the child support you paid?

February 19, 2012

Virginia Cornwell is a Columbus Ohio Family Lawyer in Columbus, Ohio and an Ohio State Bar Association Certified Family Relations Specialist. She helps clients throughout Ohio and accepts cases from all 88 Ohio Counties. The information in this article applies only to the state of Ohio.

So you paid child support for years thinking you were the father of a child (or children), and now you find out that you are not. Can you get the child support back because the mother lied about who was the father of the child? Is this fraud under the law? Can you sue to recover the child support you paid? Ohio Law says the answer is yes, but it is not that simple.

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The questions you should be asking are:

Who do I sue to recover the child support?
Do I sue the mother who received the child support or the father who should have paid it?
How do I sue to get my child support back?
What kind of case do I file (in other words, what law allows me to do this)?
What court do I file this case in?
Am I likely to win?
If I am not likely to win, why not?
If I win, am I likely to get my money back?

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The short answer is YES, Ohio law DOES allow people to file an action to be recover child support paid for a child that turns out not to be their child. Unfortunately, Ohio courts have found the law to be unconstitutional in many judicial districts. Even if your appellate district did not find the law to be unconstitutional, (brace yourself), while the law in Ohio allows you to file an action to recover child support, the law has a strict list of conditions that you would have to pass in order to win.

When the laws were passed that would allow people to “undo” a paternity determination in Ohio, many courts believed that paternity was a matter that should be decided by the courts, and the laws were unconstitutional.

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See, before you can recover child support, a person has to disprove paternity. Some courts are very hostile to this idea, and to the rights created by the legislature when Ohio Revised Code 3119.96 – 3119.967 were enacted. One example of this was a Franklin County Court decision in the VanDusen case in Franklin County (Tenth Appellate District):

{¶ 15} The legislature, when it enacted R.C. 3119.961, clearly was on notice that it was attempting to dictate to the courts of this state what to do with paternity judgments rendered months, years or even decades earlier. The legislature also was on notice that the statute it was enacting was in conflict with Civ.R. 60(B) and the body of case law surrounding that Civil Rule. In short, notwithstanding the doctrine of the separation of powers which has helped our state and federal governments to function for over 200 years, the legislature wished to tell the courts how to address matters normally reserved for the courts to determine.

{¶ 16} Such a disregard for the traditional powers of the other branches of government is especially egregious in the context of parenting and parentage *497 matters. The legislature has in effect ordered the courts to enter new judgments taking away the only father a child has ever known if a DNA test indicates that the father and child are not genetically linked. Such a legislative mandate overlooks how complex the parent-child relationship is. A person who has served as a parent for many years is still in many ways a parent to the child, no matter whose genes and chromosomes are involved. If this were not so, no adult could successfully adopt a child and raise the child to adulthood…

¶ 20} When the original divorce decree was journalized in 1995, Kelly Van Dusen was expressly found to be the child of Brian K. Van Dusen and Donna A. Van Dusen. Kelly’s parentage was clearly a matter expressly decided by the trial court—to use the Latin phrase, {¶ 21} Once a fact has been adjudicated, the way to change that adjudication is through the use of Civ.R. 60(B). Eight years have now passed since that adjudication occurred. Kelly is now 17 years old. For many purposes, Kelly is and will remain Brian Van Dusen’s child, no matter what a court says in the future.

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If this is how unfriendly the courts are to disestablishing paternity, even in the face of DNA evidence, you can imagine how much more resistant courts are to recovering wrongly paid support. In fact the only decision that this author could find that even comes close to a victory only stated that the laws allowing such claims were not unconstitutional, and, on appeal, referred the case back to the trial court to determine the claim. Any guesses as to how much, if any, the trial court likely awarded in back support?

What’s the moral of the story here? The law is trying to help fathers who paid support for a child that was not his. The courts want fathers to step up EARLY in a child’s life, and if you are paying support for a child that is not yours, the court wants you to do something about AS SOON AS YOU FIND out. The longer you wait, the less relief you are going to get. If you have questions about your child’s paternity, do something immediately.

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DISCLAIMER – Read it, it’s important!

In Ohio, how far back can child support go? That depends on PATERNITY.

October 29, 2011

Virginia Cornwell is a Columbus Ohio Child Support Attorney and an Ohio State Bar Association Certified Family Relations Specialist.

How far back can child support go in Ohio?
I didn’t even know about this baby, and now, 10 years later she is going for child support all the way back to birth. Can she do that?
In Ohio, is there a certain age where, if you haven’t already applied for child support ,you can’t get back support?
Is there a statute of limitations on child support in Ohio?

The key to answering all of these questions is PATERNITY. Whether or not paternity has been established is the primary factor in determining how far back child support can go in Ohio. The secondary factor in determining how far back child support will go is whether you request child support through the child support enforcement agency or file a Complaint (or Motion) in court.

Ohio Revised Code 3111.05 (statute of limitations) says an action to determine the existence or nonexistence of the father and child relationship (paternity, or parentage) may not be brought later that five years after the child reaches the age of 18. That means that in Ohio paternity can be established up until the age of 23.

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CHILD SUPPORT ATTORNEYS IN FRANKLIN COUNTY OHIO

What does paternity have to do with back (retroactive) child support? In Ohio, Paternity MUST be established before a court or a child support enforcement agency can make a child support order. In addition, in Ohio, a child support order can ONLY BE retroactive if made in conjunction with a determination of paternity.

Q. Who can file an action to establish paternity in Ohio?

A. According to Ohio Revised Code 3111.04, the following people can bring an action for paternity:

the child or the child’s personal representative
the child’s mother or her personal representative
a man alleged or alleging himself to be the child’s father or his personal representative
the child support enforcement agency of the county in which the child resides IF the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended. Public assistance, as used in this statute, means:

Medicaid
Ohio works first
Disability financial assistance

Q. Once paternity is established, how does a court decide whether or not to order retroactive child support?

Ohio Revised Code 3111.13 controls this issue. That statute says that a court shall not order retroactive child support if both of the following apply:

At the time of the initial filing of the paternity or parentage action the child was over three years of age.
Prior to the initial filing of the paternity or parentage action, the alleged father had no knowledge and had no reason to have knowledge of his alleged paternity of the child. (the mother of the child may establish that the alleged father had or should have had knowledge of the paternity of the child by showing, by a preponderance of the evidence, that she performed a reasonable and documented effort to contact and notify the alleged father)

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Establishing Paternity as an Adult in Ohio

PATERNITY DNA FATHER'S ATTORNEY IN OHO COLUMBUS

The issue of filing a paternity action in order to seek child support after a child turns 18 is a murky issue in Ohio, and the nuances of this issue are still being determined by Ohio courts.

On the one hand, there is ORC 2105.26 which contemplates a situation where a father, an adult child (any age), and the adult child’s mother all file a joint declaration in probate court alleging that the man is the child’s father and requesting that the probate court issue an order declaring the man to be the adult child’s father. In that situation, the declaration must state

that the adult child’s birth certificate does not designate anyone as the adult child’s father (copy of the birth certificate must be attached);
the request for the order is made freely and voluntarily by all parties appearing before the court; and
genetic test results show the man is the adult child’s father. (A copy of the DNA test results must be attached)

If the mother is deceased, or has been adjudicated to be incompetent, the alleged father and the adult child can file an action together, without the mother. The primary purpose for this type of action would be to formalize the father-child relationship and to establish rights of inheritance. In fact, Ohio Revised Code 2105.26 specifically states that when an action is brought this way, the adult child and the adult child’s mother shall not be awarded child support from the man for the time the adult child was a minor.

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COLUMBUS OHIO PATERNITY FATHER DNA LAWYER ATTORNEY

On the other hand, you have Ohio Revised Code 3111.05. This statute of limitations, which we discussed at the beginning of this article, clearly states that a paternity action can be brought by the mother, father, child or CSEA Agency until the child’s 23rd birthday (five years after the child turns 18). Sounds simple enough right? Wrong. The tricky part is, that according to the Supreme Court of Ohio in Carnes v. Kemp,, 104 Ohio St. 3d 629, if you are seeking child support after the child has turned 18, apparently that can only be done when the adult child files to establish paternity AND seek child support.

The issue presented to the Ohio Supreme Court in Carnes was “Does a court have subject-matter jurisdiction to award retroactive child support payments in a paternity action initiated after the child has reached the age of majority?” The Supreme Court of Ohio answered the question with a YES. The Court noted that Ohio Revised Code 3111.13(C) states that a juvenile court has the authority to make a support order once a parentage determination is made, and that this means that 3111.05 “extends the length of time in which to bring a parentage action, and 3111.13(C) does not limit a juvenile court’s jurisdiction in a parentage action to award retroactive child support to minor children only. This means that an adult, emancipated child can seek retroactive child support until his or her 23rd birthday. If granted, the time period for retroactive child support could be from birth through age 18.

FATHERS PATERNITY CHILD SUPPORT ATTORNEYS LAWYERS COLUMBUS

Okay, so, if you read the Carnes case, plus the statutes, you’d think that, since a mother can file an action for paternity until a child is age 23, that a mother would also be able to file for retroactive child support until the child turns 23, just like the adult child did in Carnes, right? Maybe not. In the case In re J.V., E.V. Appellant, E.V., the mother of J.V., filed for an action for retroactive child support. The court of appeals said that because the child was over 18 the court lacked subject matter jurisdiction to award child support to the mother. The court noted that unlike the Carnes v. Kemp case, no action for paternity had been filed, but said that even if the mother HAD filed an action for paternity, the Carnes case only held that an adult emancipated child could establish paternity and get 18 years back support after reaching the age of 18. The Court of Appeals in In re J.V. said that the Carnes case did NOT say that a mother had a right to file a claim for retroactive child support after the child turns 18, only that an adult child has the right. This interpretation of Carnes may not be completely consistent with the Supreme Court’s holding in Carnes, and it is very likely that there will be more decisions addressing this issue in the next few years.

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FATHER'S RIGHTS PATERNITY ATTORNEY COLUMBUS OHIO

So what’s the lesson here? Ohio fathers should establish paternity as early as possible. Because guess what – if the child waits until it is an adult to establish paternity and seek support – you may get a whopper child support award of 18 years, all at once.

DISCLAIMER – Read it, it’s important!

For more information about MOTHER’S RIGHTS, see our page regarding MOTHER’S RIGHTS IN OHIO.

For more information about GRANDPARENT RIGHTS see our page regarding GRANDPARENTS RIGHTS IN OHIO.

For more information about obtaining CUSTODY, SHARED PARENTING, ORVISITATION in Ohio, see our post about OHIO CUSTODY.

For more information about DNA testing, see our post regarding DNA TESTING.

For more information about SHARED PARENTING, see our post regarding SHARED PARENTING IN OHIO.

For more information about the rights of UNMARRIED PARENTS OR NEVER MARRIED PARENTS, click the link.

Ohio Father’s Rights News: Fast Action May Be Needed to Protect Your Rights!

August 21, 2011

Ohio Father of Unborn Child

Ohio Fathers may need to act fast to preserve their rights to parent their child. Although registering with the Ohio Putative Father’s Registry before the birth of their child or within 15 days of the birth of their child will entitled them to notice of an adoption, it does not necessarily preserve their right to stop their child from being adopted, and their parental rights from being terminated. Recent Ohio Supreme Court decisions have promoted father’s rights and affirmed the rights of birth fathers to stop the adoption of their children. The conclusion that can be drawn from these decisions is thats the best way to stop your child from being adopted, and your parental rights from being terminated, is to file an action in Juvenile court to establish paternity and/ or parental rights. An action to establish paternity can be filed even before the child is born.

In re Adoption of G.V. and In re Adoption of P.A.C. both held that the probate court may not proceed with an adoption while there is an issue pending in juvenile court concerning the parenting of the child. The Court applied their 2006 decision In re Adoption of Pushcar to these cases, holding that the issue in juvenile court must be finalized before the adoption may proceed.

In Pushcar, the child’s biological parents were not married. The husband of the child’s mother filed to adopt the child, and the biological father opposed the adoption. The biological father’s paternity action had not yet been finalized, and at issue was whether it was necessary for the biological father to consent to the adoption. The Court held that his consent to the adoption was necessary, even if paternity had not yet been formally established.

FRANKLIN COUNTY OHIO FATHERS ATTORNEY Behind this decision is the policy concern that, “the right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law.” In re Adoption of Masa. Ohio recognizes the interest parents have in raising their children as fundamental, and “the state’s interest in finding the best home for the child does not arise until the parent has been found unfit.” Cruzan v. Director.

UNMARRIED MILITARY FATHER MOTHER IN OHIO PATERNITY The Ohio Supreme Court applied this principle in the 2010 decision In re Adoption of P.A.C. In this case, the child’s biological father, Gary Otten, was not married to the child’s mother and was not listed on the birth certificate. Otten opposed the child’s adoption. Applying Pushcar, the Supreme Court affirmed that his consent to the adoption was necessary, even though he had not registered with the Putative Father Registry. Pushcar was applied in another recent decision as well. In In re Adoption of G.V. the biological father had registered with the Putative Father Registry before the adoption petition was filed. The Supreme Court again held that Pushcar applied to this case, making his consent to the adoption necessary.

A putative father is an individual who may be a child’s father, but was not married to the child’s mother on or before the child was born, has not established paternity of the child, or has not been determined to be the father of the child by a court proceeding or an administrative agency. In the event that an adoption petition is filed for a child, the Putative Father Registry operates as a system to identify an undisclosed putative father and provide him with notice of the adoption petition. The Ohio Department of Job and Family Services suggests that anyone who thinks someone may be pregnant and that he may be the father should register with the Putative Father Registry no later than 15 days after the child’s birth. Registration is free, and adults or minors may register. You can read more about the Putative Father Registry here: http://jfs.ohio.gov/pfr/.

ATTORNEY WHO REPRESENTS FATHERS IN COLUMBUS OHIO PLEASE NOTE: The Ohio Putative Father Registry form only has a post office box. If you are close to the 15 day deadline, and do not want to take a risk that your form will be processed too late, or that your form may be lost in the mail, then you should consider going down to the Putative Father Registry office in person. There is a toll free number on the form that you can call, and if you explain your circumstances they SHOULD give you their office address. The last published address that this office was able to find was: 50 W. Town Street, Suite 400, Columbus, Ohio, 43215. Remember, it is up to YOU to make sure you have their current address, so pick up the phone and call them, don’t rely on this website to make sure you have the current address.

DISCLAIMER

Columbus Ohio Father’s Rights Attorney

November 28, 2010

Columbus Ohio Father’s Rights Attorney

In Ohio, does a father have a right to get visitation, even if paternity has not yet been established?

Does the law regarding an Ohio Father’s Rights include the right for the father to request temporary orders regarding visitation or custody, even if paternity has not yet been established?

Franklin County Ohio Father's Rights Lawyer The answer is YES. Since the husband is presumed to be the biological father when a child is born to a couple who is married, this issue applies to Ohio Father’s Rights situations where the mother and father of a child were never married. Ohio Revised Code 3109.043 (Temporary Custody Order While Action is Pending) states the following regarding an Ohio Father’s Rights to visitation and/or custody while a court case is pending, or temporary orders:

In any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, when requested in the complaint, answer, or counterclaim, or by motion served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of the court, the court, without oral hearing and for good cause shown, may make a temporary order regarding the allocation of parental rights and responsibilities for the care of the child while the action is pending.

If a parent and child relationship has not already been established pursuant to section 3111.02 of the Revised Code, the court may take into consideration when determining whether to award parenting time, visitation rights, or temporary custody to a putative father that the putative father is named on the birth record of the child, the child has the putative father’s surname, or a clear pattern of a parent and child relationship between the child and the putative father exists.

Effective Date: 05-17-2006

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Licking Union Richland Knox Morrow County Ohio Father's Attorney There are several things about that statute that you want to read carefully. Every word matters. Here is some additional information about important phrases from the statute:

PROCEEDING PERTAINING TO THE ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES :

- First, this means a COURT proceeding. It does NOT apply to an administrative proceeding for child support through the CSEA. The CSEA has no authority to order visitation. Sometimes, during an administrative child support proceeding, if the parties agree, the CSEA attorney or liason will give the parties a form to seek court ordered visitation, but that form is still submitted to the COURT, and is not ordered by the CSEA.
- Second, notice the phrase “parental rights and responsibilities”. This means that if a Father files a motion in an actions which was only filed as a grandparent visitation proceeding, the court may find that it has no authority to make temporary orders for visitation for the Father. The Father may file a motion to be made a party to the grandparent visitation proceeding, but unless he files a Complaint for the Allocation of Parental Rights and Responsibilities (and, if applicable, for establishment of paternity), the court may find that the action is not a “proceeding pertaining to the allocation of parental rights and responsibilities), and therefore deny the Father’s request for Temporary Visitation. (The Mother would, at that point, still have full custody of the child pursuant to 3109.042, and would not need temporary orders for visitation.)
- Temporary Orders are available during the INITIAL proceeding, not in post-decree proceedings.
- Temporary Orders of visitation are not available in a court proceeding which is merely an objection to an administrative child support order. The court proceeding has to include a complaint, answer or counterclaim for parental rights and responsibilities.

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WHEN REQUESTED IN THE COMPLAINT, ANSWER OR COUNTERCLAIM, OR BY MOTION SERVED WITH THE PLEADING:

To establish an Ohio Father’s Rights to temporary visitation or custody, the Father, or his Ohio Father’s Rights Attorney, should request temporary orders pursuant to Ohio Revised Code 3109.043 in his Complaint, or his Answer to the Mother’s Complaint, if the Mother filed the Complaint. In the alternative, the Father can seek his Ohio Father’s Rights by filing a motion. It is unclear from the statute whether his Motion must be served with his Complaint, Answer or Counterclaim, but it is the better practice to file the Motion at the outset of the case. In addition, sometimes a request tucked at the end of a Complaint Answer or Counterclaim escapes the notice of the court at the initial hearing, but a Motion which is pending on the Court’s Docket is more likely to be noticed and addressed at the first hearing.

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Paternity established no child support order visitation go to court Something that is important to note is that if child support is not yet established, but paternity is established (perhaps through an Affidavit signed at the child’s birth which allows the Father’s name to be on the child’s birth certificate), Ohio judges and magistrates almost always establish a temporary order of child support. If the father, or his attorney, has not already filed a Motion for Temporary Orders or requested temporary orders in his complaint, this would be a great time to point out that Ohio Revised Code 3119.08 mandates the following:

Whenever a court issues a child support order, it shall include in the order specific provisions for regular, holiday, vacation, parenting time, and special visitation in accordance with section 3109.051, 3109.11, or 3109.12 of the Revised Code or in accordance with any other applicable section of the Revised Code.

Effective Date: 03-22-2001

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UPON SATISFACTORY PROOF BY AFFIDAVIT:

If you don’t know what an affidavit is, there are several sources you can consult to make sure you know what it is and you are preparing your affidavit correctly. Here are some additional resources regarding Temporary Orders Affidavits:

https://cornwell-law.com/08/temporary-orders-affidavits/

http://temporaryorders.com/

WITHOUT ORAL HEARING AND WITH GOOD CAUSE SHOWN:

This means that the court does not have to require a full hearing, with the presentation of testimony, to make temporary orders. It also means that the burden is upon Fathers to show the court good cause in their affidavits regarding why they should have temporary custody or visitation. If your county doesn’t have a form affidavit that you can use and which asks all the court needs to know about the best interest of the child, then you may have to submit narrative affidavits.

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DISCLAIMER

Ohio Child Custody Part 1

September 25, 2008

Ohio custody is not a simple process. Hopefully this article will provide you with a roadmap through the process. The first question you have to look at is…

Were the parents married when the child was born?

The first issue that must be determined, according to Ohio law, is whether the parents of the child were married when the child was born. Whether the parents are married determines which laws govern the allocation of parental rights and responsibilities. The term “allocation of parental rights and responsibilities” comes from the Ohio Revised Code. In plain english, it means the division of parental rights and responsibilties. Time with your child is a parental right, and support of your child is a parental responsibility. The term “allocation” is more accurate than the word “division” because most rights and responsibilties apply equally to both parents, rather than one parent or the other. For example, it is the responsibility of both parents to supervise and support their child, whether the parents live together or not.

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CHILDREN BORN DURING A MARRIAGE

If the parents of the Child were married when the child was born, then Ohio Law presumes that the mother’s husband is the Father of the Child. This is a rebuttable presumption, which means that it is only legally true until a court or administrative order determines that it is not true. Generally, this is done by paternity testing (DNA testing).

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RIGHTS OF OHIO UNMARRIED MOTHERS

Ohio Revised Code 3109.042 provides that an unmarried female who gives birth to a child is the sole residential parent and legal custodian of the Child until a court of competent jurisdiction issues an order designating another person as the residential parent and legal custodian.

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RIGHTS OF OHIO UNMARRIED FATHERS

In Ohio, unmarried fathers have no rights at all until they prove they are the Father of the Child (paternity). The Law takes this perspective – it is obvious who the Mother is if the Child was born in a hospital – the Mother was present and the doctors and nurses saw her give birth. But, any man could be the child’s Father. So, the Law requires the Father who is not married to the Mother (and thus not protected by the legal presumption of paternity), to legally establish paternity before they have visitation, shared parenting or custody of their child.

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PUTATIVE FATHERS

Q. What if an unmarried or married man had sex with an unmarried woman and he wants to preserve the OPTION to have Father’s Rights, but he is not sure that he wants to be involved in the child’s life?

A man who has had sex with a woman in Ohio, and wants to preserve his rights in case a child is conceived, must register with the Ohio Putative Father Registry (1-888-313-3100). Even fathers under the age of 18 may register with the Ohio Putative Father Registry.

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For more information about the Ohio Putative Father Registry, and the deadline to register in order to preserve a father’s right to be informed before a child is adopted, see the Father’s Rights web page of our site:

https://cornwell-law.com/answers/fathers-rights-learn-about-fathers-rights-to-visitation-in-ohio/

For additional instructions regarding how to register for the Ohio Putative Father Registry, click here.

IT IS IMPORTANT TO REMEMBER that sometimes, when children go into the custody of Children’s Services, the parental rights are terminated without the Ohio Putative Father Registry ever being checked. There have been cases where fathers appealed this decision, and the court did NOT overturn the adoption. So, while registering with the putative father registry provides SOME protection, it is not fool proof. The only fool proof way to preserve a father’s rights is to get them established by a court and exercise them responsibly.

Virginia Cornwell is an Ohio Child Custody Lawyer who also practices in , visitation, shared parenting, paternity, never married parents, married parents, and the process of obtaining custody in Ohio. To see the remainder of the Custody in Ohio series, click the links below