Episode 108 - How Do You Determine Custody and Child Support When the Parents Were Never Married?
Lee Meriwether: Welcome everyone. I'm Lee Meriwether and with me Todd Orston. Todd an I are partners at the law firm of Meriwether & Tharp and you're listening to Meriwether & Tharp Radio on the new Talk 1067. Here you will learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis and from time to time even tips on how to take your marriage to the next level. If you wanna read more about us, you can always check us out online. Atlantadivorceteam.com
Lee Meriwether: Todd, you ready?
Todd Orston: I'm very ready.
Lee Meriwether: You sure?
Todd Orston: You have no idea.
Lee Meriwether: I'm not even sure what that means but whatever. Yes, I am absolutely ready. What are we talking about today?
Todd Orston: We are gonna talk about what do you do when there is no I do? When you've got two couples, or a couple have moved in together and had a child, because it is a growing thing that's happening. A situation that's happening in our society. In fact, I wanted to ... there was a study that came out in November 2018. So not too long ago. That was studying marriages and cohabitation situations since, let's see 2008 to 2017. So the study is called "The Coming Divorce Decline" by Philip Cohen from the University of Maryland. So, you could actually look it up online to read it, but his paper analyses the odds of a divorce from 2008 to 2017 using a multivariate, a multivariate models just looking at marital data's from the American Communication Survey. And they found that there was a falling observed divorce rates over the last decade that are apparent in the fully adjusted model as well. I'm just reading some notes.
Todd Orston: That age-specific divorce rates show the trend in the last decade has been driven by younger women despite the higher divorce rates among older women than in the past. And so, he looked at newly married couples over the last decade, and he identified trends that seem to show further declines in the divorce rate. A couple of years ago we had a show where we took a study form 2015. It was from the Pew research center that also found that over the course of the last, at that point, since 200 that the divorce rate had been dropping. But his study went on to find that people today are becoming much more selective when it comes to marriage. They're getting married much later and as a result the divorce rates actually ... it's going back to the pre no-fault divorce rates. And it's making a dramatic decline. I think at just 18% the last eight years.
Todd Orston: And he also found ... what he found in that study too was that less people were getting married. And he found that more of the marriages were people that had graduated from college. And so, they got married later in life and they had better plans. Maybe they're communicating better, they're more selective of their mate. And as a result they're having stabler marriages which is a good thing.
Lee Meriwether: Great thing, but one other thing is still happening.
Todd Orston: Right, so what he found was at the same time that the marriages are getting more and more stable. He found more people that are just living together, and those relationships are becoming more unstable. So, really interesting and this is just data that he has been tracking for the last ... looking at for a long time and put it all together. And he's actually ... we're not gonna talk about this in the show but his finding that there's a greater social inequality as a result of this situation because ... he said that what's really interesting too because the divorce rates been declining when at the same time people are becoming more accepting of divorce which I find very interesting. You would think that well, maybe that would cause the divorce rate to climb if it's no longer a social stigma or is not what it used to be.
Todd Orston: But, apparently the divorce rate's still declining even though more people were saying, "well, it's okay." And even then you got the ... it doesn't seem to make sense but we don't have to make sense of it. We just looked at the data and we see, "Okay, we have a growing problem." And what I'm talk about the cohabitation issue, because we're a divorce firm but one of the core areas of divorce is child custody. And so what we've been seeing an increase in is what's called initial child custody termination cases. Sometimes they're legitimation cases, but people lived together thinking, "Well, I'm gonna avoid marriage. I'm gonna avoid the stigmas. I don't wanna go through a divorce so we're just not gonna get married." But then they had children. And then they get property together. And then they break up because the data is here showing that if you just move in together that the odds of you breaking up are going up and up and up. And that you're better off planning out your marriage before you move in together.
Lee Meriwether: Yeah, and there are things that people don't ... and this is ... don't get us wrong. This is not a show where we are promoting marriage over cohabitation. We are not pushing an agenda, we are not telling you what to do or not to. But there are things. If you don't get married for instance, and you collect or accumulate property.
Todd Orston: Right.
Lee Meriwether: In a divorce it becomes very easy because under the laws of Georgia, basically anything you accumulated during the marriage constitutes marital property subject to division. If you are not married, it is one bi murky gray area because you don't have that divorce law to look to, to help in the division of the property which means you're really in this, again, big murky area where it's like, "Well, who gets the toaster?" I have no idea. Do you have a receipt? Do I have a receipt? What judge in what action is going to deal with who gets that? Are you gonna have to feel some kind of a small claim magistrate court property action to try an get things you are claiming are yours?
Todd Orston: Or it could be something bigger.
Lee Meriwether: That's right.
Todd Orston: It could be you moved in together. Maybe the mom purchased the house and dad actually was using his salary to pay the mortgage.
Lee Meriwether: But his name's not on the title. He's not on the mortgage and therefore in divorce, every dollar that was spent paying down the mortgage was creating a marital interest.
Todd Orston: Yeah, marital interest, yeah.
Lee Meriwether: And, but when you're not married that husband, or not husband, but that man in that situation could've poured all of his money into paying down that mortgage and unfortunately he's in a very bad situation because he doesn't have a claim to the house.
Todd Orston: Right, it's her house. It could be considered a gift that he was giving every month.
Lee Meriwether: So, not let's talk about the actual, like what this show is actually about. We're not gonna be focusing on the property, but we wanted to go into that just to explain how some of these difficulties can arise when you're not married, and we're talking now about custody and some of the problems that arise when you have a child out of wedlock and it affects your rights.
Todd Orston: Right.
Lee Meriwether: Especially a man. It affects the rights that you have to that child. To play a part in the child's day to day decision making and things like that. And that's really what we wanna focus on in this show.
Todd Orston: Yeah, and I'm glad you said that [inaudible 00:07:57] this is not a show ... we're not making assessment. We're just saying, "Hey, look. The dad is showing that this is an increasing problem. So, if you do make the decision to have a child and you haven't gotten married, again this is not an issue of judgment." We're gonna talk about the legal ramifications of that decision. That's all we're talking about here today.
Lee Meriwether: That's right.
Todd Orston: Because I think it's important because we get the call and when we answer calls about this, people were shocked all the time when we tell them. Especially if it's a dad calling in and we tell him, "Yeah, you know what? She actually could just take off in any time with the child."
Lee Meriwether: We get that call all the time. I got into an argument with the mother of my child. She says she's moving to Canada. What can I do to stop her? Well, nothing. Nothing yet. If the child was born out of wedlock there are some legal steps you need to take to do anything, and have any hope of trying to stop that move. But until you do that, she can go, within reason, she can go wherever she wants, and there's-
Todd Orston: It's not kidnapping.
Lee Meriwether: That's right. Because you don't have a legal right. And I don't wanna jump ahead. We're gonna get into definitions, we gonna try an explain in more detail what is legitimation? What are these legal pitfalls that can come up when you're not married? What are the types of actions that you can take to establish rights?
Todd Orston: Right.
Lee Meriwether: And basically what can you do in order to make it so that you're on an equal playing field? You're on equal footing with the mother of that child.
Todd Orston: Yeah, and we're gonna talk about what you should be doing, really. 'cause some people are afraid that if I bring a legitimation, and let me pause for a minute. Every state addresses this issue differently. Maybe some of these things are gonna be general nature. So, if you're ... we're gonna be focusing on Georgia. So, if you're listening to this and you have a child in a different state.
Lee Meriwether: Great point.
Todd Orston: You need to talk to a lawyer in that state to find out what the law is. But here in Georgia, until you legitimate. You don't have any legal rights. So, we're gonna talk about what that means, what the process is, what the court looks at. We're gonna talk about ... you can sometimes file for legitimation but you may still be living together, but you can just have a ... just need a court order. And they used to have it where they have what these things called administrative legitimations.
Lee Meriwether: I'm glad you brought that up 'cause some states still do.
Todd Orston: Right.
Lee Meriwether: And, Georgia is not one of them.
Todd Orston: Sometimes the police don't know what to do, too. So, these are really important things that we felt like we needed to spend a whole show on just so people don't get caught in the worst situation, and the find themselves scrambling to get on even playing field. And if it's something that can be addressed sooner. You're less likely to be caught in a bad spot where you're scrambling to hire a lawyer, save money to hire a lawyer.
Lee Meriwether: Stop a move or stop some other behavior that right now you don't have any legal rights to stop.
Todd Orston: Yeah, up next, we're gonna talk all about that.
Lee Meriwether: Welcome everyone. I'm Lee Meriwether and with me Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to Meriwether & Tharp Radio on the new Talk 1067. If you wanna read more about us, you can always check us out online. Atlantadivorceteam.com
Lee Meriwether: Well, today we're talking about legitimation cases, and that's a technical legal term, but a legitimation case is where a father goes to court, at least here in Georgia, goes to court to seek rights to a child, parental rights to a child that was born out of wedlock. And so we talked about, in the previous segment, a new study that's come out that's fairly recent that has found that marriages are actually becoming more stable but less frequent. But what's more frequent is situations where people are moving in together. But those relationships are actually showing to be more unstable.
Lee Meriwether: So, we thought that with that, taking that knowledge. We thought it was important that people understood what happens when you have a child and you didn't get married. And there's certain laws that are in place, and again, I'm glad you said that last segment that this isn't a situation where we're judging anyone. It's just we want people to understand the legal ramifications.
Todd Orston: Yeah, and I know and I'm glad that you did talk about some of these studies and some of the statistics and all of that. I'm gonna hit it from a different angle. This is what we do for a living.
Lee Meriwether: Yeah.
Todd Orston: And we get calls on a weekly basis of people who have not established legal rights, because again, like you were saying. That's what we're talking about. Biology can't be changed. You're either the biological parent or not. You are either the biological father or you're not. We're talking about now establishing legal rights to go along with that biological connection. And, on a weekly basis we get people who call and unfortunately what they did was they waited too long for the relationship between themselves and the mother to sour. To get to a point where they can't agree on what time it is. Let alone what is in the best interest of their child, and sometimes it's major things. Sometimes it's the country . they wanna move out of the country. They're in a new relationship and they want that person to adopt or to do something like that, and they're trying to terminate rights.
Todd Orston: So, it is imperative that ... if this is something that could affect you or somebody that you know. Understand some of the ramifications of inaction and then go out and get yourself help and don't procrastinate. It is better to do things at the very beginning. Just establish those rights when the relationship between you and the mother is good, so that way, hopefully, it always stays good. But if it doesn't, then you have your legal rights and you can fight for custody or parenting time or whatever you need to fight for.
Lee Meriwether: So, at least for these first few segments we're talking to the men. The fathers [inaudible 00:14:29]
Todd Orston: That's right.
Lee Meriwether: We are gonna save the last segment, we're talking to the moms that are in this situation. So, we're not trying to be one-sided 'cause there's legal ramifications for both sides but I will say this. Let me ask you this question. If two people are living together, they have a child and they've been living together for five years together. And, everybody in the neighborhood sees dad as the dad, and mom just suddenly takes off. Is it kidnapping?
Todd Orston: No.
Lee Meriwether: Takes off with the child.
Todd Orston: Absolutely not.
Lee Meriwether: So, what if the biological ... what if in that same situation the biological father, everybody in the neighborhood sees the biological father is dad. What if he takes off with the child?
Todd Orston: Get ready for the police to be called. And be looking over your shoulder no matter where you go for the police to stop you and potentially arrest you, if not actually arrest you for kidnapping. Because ... and it's a legal ... it's just an issue of formality. Meaning, you are the father, you're known as the father, you are biologically the father but until you do this one thing. Under the law, and hat is to legitimate, to [inaudible 00:15:52] your legal rights. Then you are, what I sometimes say to people is, "I have as much legal right to your child as you do." All right. And it doesn't mean I'm biologically connected. It means that we both have no legal rights as it relates to your child, and until you legitimate, and part of legitimation process is to establish the biological connection. But once you do that, then the mom can't just do whatever she wants, go wherever she want without at least bringing you into the discussion and that decision making.
Lee Meriwether: So, here's the thing. Legitimation, all that does is just say that ... identify ... changes your status from the biological father to the legal father and allows your child to now inherit from you.
Todd Orston: Absolutely.
Lee Meriwether: And so that's another thing. It grants the fathers the same rights as the mother. And so there are situations where people will say, "I didn't do anything 'cause we were living together and it felt like if we brought the court in, it was gonna make it worse."
Todd Orston: Very common.
Lee Meriwether: It was gonna suddenly create a bad situation but you can actually get a legitimation, do a consent legitimation where a judge just issues an order and all the order says is that he is the legitimate father of this child or children.
Todd Orston: And the child can inherit, right. And the child or children can now inherit from the father's estate.
Lee Meriwether: And as far as I know-
Todd Orston: And boom, that's it.
Lee Meriwether: Yeah, and as far as I know, 'cause we ... none of the judges that I've ever been in front of had changed this, but so I'm not saying that every judge is gonna do that but some judges might go, "Well, why is there no child support? Why is there no parenting plan?" Just say we just sought legitimation because that was the ... we just wanted the legal rights established and we're living together.
Todd Orston: It's the Pandora's box argument.
Lee Meriwether: Mm-hmm (affirmative)
Todd Orston: And I get it. I understand it can cause stress between you and the mother. And it's like Pandora's box. Once you open up that box you don't know what's coming out. I will explain that to people also. You are correct. By initiating that legitimation action you may be forced to deal with child support, you may be forced to deal with some kind of parenting schedule.
Lee Meriwether: Yeah.
Todd Orston: It is possible, or you may have a judge that's like, "Oh, you just need the legitimation. You guys are living together. Everything else is fine. Okay, fine. Ma'am if you ever wanna move for child support or if you wanna petition this court, sir, for some kind of a parenting schedule. Or ma'am for a parenting schedule. Fine. Come back."
Lee Meriwether: So, typically the next step is let's say you've legitimated. And we're gonna talk later about if you were trying to legitimate and seek primary physical custody. We'll talk about that later.
Todd Orston: Right.
Lee Meriwether: But first you legitimate and you stay together but two years later you break up. At that point, one of you or both of you can go to court and seek what's called an initial custody determination. And in that, meaning that at the point you legitimate both of you have a 100% interest in your child or children. Which when you're together that's fine. But when you break up and you move out, that obviously comes in contact because if you're living in two separate houses you cannot have your children in the house 100% of the time. Each of you. So, if you can't work it out. A court can always issue a custody determination. Now, here's an interesting thing. That only fathers can bring a legitimation action because, and this is interesting 'cause we've had moms call and say, "Hey, I need to-
Todd Orston: File legitimation.
Lee Meriwether: And we're like, "No, we can't." Well, I'm afraid he's gonna do X or he's gonna do Y. Well, technically he has no legal rights right now.
Todd Orston: We'll go into that in the last segment when we're dealing with moms and what their rights are and what more specifically the fathers rights aren't.
Lee Meriwether: Yes.
Todd Orston: Okay. But you're correct in that we have people that ... mother's who call and they're like, "I'd like to initiate 'cause some concern that he might do X or Y or Z." And usually our response is, "You really don't have to be afraid of that because right now you're the only one with legal rights, and therefore they can't do those things without doing so in violation of the law and potentially committing crimes."
Lee Meriwether: And so, I'm gonna throw out a wrench on that just for a minute. Only because ... I'm not sure how a court's gonna handle this, but a brief history of Georgia. There was time period for several years where we had what was called administrative legitimation. And what that meant was, at the time the birth certificate, the child was born. You signed the birth certificate but you also signed an affidavit swearing you were the legitimate father and biological father of the child. And that through administrative process legitimized the child. That actually was taken away by the legislature two years ago? Or was it three years ago? It's gone now.
Todd Orston: A few years ago, right.
Lee Meriwether: But the reason it was taken away was because there was confusion in the courts. There was a case where a judge completely ignored that administrative action, and did not grant a formal legitimation. And then there was another one where the court recognized it and in order basically affirming the administrative legitimation. So, that could complicate things. So, if the child's eight years old that could've been in the realm, depending on what time you're listening to this show. That could put you in a realm where there could've been an administrative legitimation. So you'd need to check the birth certificate. You may wanna talk to a lawyer in that situation.
Todd Orston: Right. And the confusion then comes up because if administrative legitimation was permitted and for eight years the father had no contact with the child. If legitimation occurred in the past then the court can't refuse legitimation. It's already been done. It would have to be a termination action. Meaning terminating your legal rights as opposed to, you haven't any time over the last eight years and now it's not a termination. Now it's just a court saying, "No, I'm not gonna grant a legitimation. You have given up your right to be a part of this child's life."
Lee Meriwether: And so up next we're gonna explore a little bit why you shouldn't wait. What could happen if you wait to legitimate your child from a standpoint of going in front of a judge later.
Lee Meriwether: Welcome everyone. I'm Lee Meriwether and with me Todd Orston. Todd an I are partners at the law firm of Meriwether & Tharp and you're listening to Meriwether & Tharp Radio on the new Talk 1067. If you wanna read more about us, you can always check us out online. Atlantadivorceteam.com
Lee Meriwether: Today we're digging into legitimation and actually paternity guy. I think I left that out when I said that before. But we're talking about what happens, what do you do when there's no I do? When there's no marriage but there are children as a result of the relationship. And we talked about a recent study that showed that cohabitation was on the rise but also the instability of those cohabitation arrangements is on the rise as well. And so we thought it was important that people understood that there is legal ramifications when there's no legitimation. It's just how it is here in Georgia. There's states out there that have similar laws. We can't talk on that, but definitely if you're in that situation you should contact a local attorney.
Lee Meriwether: Okay, so where we left off we were talking about why someone doesn't want to wait to legitimate. One reason is if you're living together and you're both legitimated, and if someone wants to suddenly leave the state or the country. You can object and also may get ... I haven't even looked at the rights it gives you when it comes to ... you know what? There's federal law when it comes to passports. They just ask for biological father, don't they?
Todd Orston: I believe you're right.
Lee Meriwether: So, we don't follow federal law 'cause we focus only on ... custody issues are decided by state law. So that's we don't know that off the top of our head, but I'm pretty sure this came out once before and it was they look at biological father.
Todd Orston: They do. I think there's a requirement that you reach out and get the permission of the biological parent.
Lee Meriwether: So, Todd, what goes on when you wait? When you sit on your rights? You're getting yourself in a position where you might not really be able to legitimate your child.
Todd Orston: So, the answer is yes and no. All right? I don't care if you wait a year, five years, 10 years, 17 years, okay? You can move for legitimation and it should be an easy process. As long as you can prove through DNA testing the biological connection then the court should grant a legitimation. So, that part, absolutely it should be easy. Where it becomes more complex is on the flip side if you are not active in the child's life. So, in addition to the fact that you never moved for legitimation and now you are petitioning the court five, six, seven years later. You're saying, "I wanna be in the child's life or I want to legitimate." and then the evidence comes in that for the last five, six, seven, eight years you have been non-existent. You have not participated in any of the child rearing. You rarely if-
Lee Meriwether: [crosstalk 00:25:26] pay child support.
Todd Orston: You don't pay child support. You rarely visit if ever, and now all of a sudden you've woken up and said, "You know what? I wanna have a relationship." Then the court could absolutely refuse to grant the legitimation and by virtue of refusing to grant the legitimation. What that has basically done, it has in essence severed any potential for a legal tie between you and that child.
Lee Meriwether: Right.
Todd Orston: Which means that the mom does not have to tell you when she is going somewhere. Doesn't have to talk you about medical procedures and educational issues, and doesn't need to talk to you before she makes decisions because you don't have any legal rights. As I said before, I have as many legal rights to your child as you do. All right. So it really ... as long as you have maintained a relationship. Let's take the flip side. Five, six, seven, eight years. You've been the dad. Forget about the biological father. You've been dad and you have been to doctor visits, and you've worked with the mom and made decisions, and all of a sudden you and the mother are no longer getting along, and you say, "You know what? Someone told me or I heard that fantastic show and I think I need to get a legitimation." No. Do I think that you'll run into major problems? You shouldn't, they could make problems for you but the court should grant the legitimation because the evidence will overwhelmingly how you've proven yourself to be the father the court wants you to be.
Lee Meriwether: Right. And I think this is important too because let's say you're not involved and seven years goes by, and mom brings up what's called a paternity action against dad for child support. Well, I've seen situations where the dad said, "Well, if I'm gonna pay child support I wanna be involved in the child's life." I've seen situations where the court has said, "You get to pay child support-
Todd Orston: But I'm not legitimating you.
Lee Meriwether: I'm not legitimating.
Todd Orston: Absolutely.
Lee Meriwether: And then there's other situations. We've had situations where the father who was actually very abusive, attacked mom while she was pregnant. Tried to actually cause an abortion. He was arrested, spent two years in jail. Came out of jail and tried to legitimate and the court denied him. Because of his past behavior. So, and in that situation he, I believe we still won our client child support too. So, he had to pay child support [crosstalk 00:27:54]
Todd Orston: One thing has nothing to do with the other.
Lee Meriwether: Right. For a child he could not see. So, that's important to know. Now, let's talk about you've ... getting along but now things are apart and you need to work on a parenting plan. So, most people will file a legitimation and a request for initial custody determination. If you're already legitimated then you file a request for initial custody determination. And you got two steps. There are two possible paths. The first path is the one that we think is most helpful for people, and that's to sit down with your, the mother or the father. And try to come up with a parenting plan on your own. If you struggle with that there's mediation options. There are lawyers, a lot of times lawyers can get involved and help the parties get together and work something out. There's always a fear that lawyers are gonna make it worse but a lot of times they make it better. And there are services out there that I understand that they're trying to help. We should probably try to bring some of them on that are trying to help fathers be more involved in their children's lives. That can help try to work out a parenting plan. So, I think there's some inexpensive or free resources out there.
Lee Meriwether: Now, but if that doesn't work you have the option of going on front of the judge and then the judge gets to make the decision. Now, keep this in mind. The judge can make the decision to not only grant legitimation, but also award dad primary physical custody. So, and at that point the court looks at the, is it 17 factors for what's called the best interest of the child standard. I think all states have it. I believe they call it the best interest of the child standard. It's pretty, it's a pretty common theme throughout the states when it comes to child custody. Through all the states in the United States. But obviously if you're in a state outside of Georgia you wanna check with local counsel but, we can touch on some of the factors that they look at. We'll just ...
Todd Orston: Yeah, absolutely. Just to understand, before we go into that though. Understand that what it really boils down to, 'cause I don't wanna get too complicated in terms of going into all the factors and explaining. What it really boils down to is, do you wanna have a say in your child's life? Do you want to be on equal legal footing with the other party? If so, obviously for more reason than that I'm gonna tell you stay involved in your child's life. All aspects, medical care, education, all of that. But on top of that, as quickly as you can, better yet, at a time when you and the mother are still getting along. Get out there, file legitimation. Deal with that issue. At least secure your rights so that you are on equal footing. That way, a court, 'cause without it a court can't even make a determination of who should have custody because there's only one party that has the legal right to custody. So, you need to get there and basically say, "Okay, I've been involved. I would like custody." You're fighting that fight on equal footing with the mother and the court could give you primary physical custody. Could give you secondary custody meaning subject to a parenting schedule. Can do a number of things first but the point is, you have that right, you have that ability.
Lee Meriwether: Yeah, and so some of the things, going back y=to what you were saying of the love, affection, bonding and emotional ties between each parent and the child. The love, affection bond an emotional ties existing between the child and his or her siblings. So, sometimes you have step siblings or half-siblings that can come into play. The capacity and disposition of each parent to give the child love, affection and guidance and to continue the education and rearing of the child. Each parents knowledge and familiarity of the child and the child's needs. That goes back to what you were saying. Go to the doctor's appointments, be involved in the extra curricular activities, those kind of things. So, if you're in this situation, we don't have the time to go into all of the details but we've had past shows where we talked about custody and we talk about co-parenting because at this point the law concerning custody is the same in legitimation cases as it is in divorce cases.
Lee Meriwether: So, all the other shows where we've had where we talked about what do you need to do to be successful in a child custody case? Like we had that show about can fathers really win custody? So, we broke that down and what they need to do and what they should do. We actually had a twist at the end to that so I don't wanna give it away if you haven't heard it. But listen to that, educate yourself, but the most important thing is be a dad. If you're a dad that's involved in your child's life or children's life. First off, you're setting your children or child up for success because I think it is healthy and there's a lot of data out there that says it is necessary for the parents to be involved in the parents live. So, you're setting your children up for success and you're setting yourself up for success in a subsequent action.
Lee Meriwether: Well, subsequent to this and the commercial break. We are gonna get back, we're gonna talk about ... we're gonna switch gears and talk to the women, the moms and what they should be doing in these same situations. Todd, while we're on a break let's take a moment to speak just with our podcast listeners.
Todd Orston: Great idea, Lee. First, thank you for listening. If you're a client of ours, thank you for taking the time to educate yourself. It really helps us help you.
Lee Meriwether: And I wanted to thank those that recently took a moment to review our podcast. We really appreciate it. If you feel like you're gaining a value form this show please take a moment to post a review. The reviews help others find the show which allows us to help even more people.
Todd Orston: And if you're not sure how to post a review our web master's put together a simple explanation on our web page. You can find it atmtlawoffice.com/review it. That's M as in Mary, T as in Tom, lawoffice.com/review it.
Lee Meriwether: Welcome everyone. I'm Lee Meriwether and with me Todd Orston. Todd an I are partners at the law firm of Meriwether & Tharp and you're listening to Meriwether & Tharp Radio on the new Talk 1067. If you wanna read more about us, you can always check us out online. Atlantadivorceteam.com
Lee Meriwether: Well, today we're talking about legitimation and paternity access. What do you do when there is no I do? Or there was no I do and now you're at odds with the mom or the dad. In the first three segments we talked about, we were talking to the men. What should you be doing? And the reason we took three ... well, actually the first segment was talking about all this new data and studies that have come out. But I think the men's process is they have less rights and it's a little more complicated. It's a lot more straightforward for the moms, but we're gonna spend this last segment talking to the moms. What do you do in this situation? I've got a hypothetical for you, ready?
Todd Orston: I'm ready.
Lee Meriwether: All right. Here we go. Mom and dad are living together but they're not married, and let's assume the mom's been a stay at home mom the whole time. For several years and the dad's been building a very successful business. One day he just gets up and leaves. He leaves mom at home along with no money, no job and the child. And let's assume he is not legitimated yet. What can she do?
Todd Orston: Well, the first and foremost because more than likely if he's been an involved father in terms of parenting time and that more than likely he's not gonna stop. Which means that he is gonna try and be active in the child's life. Calls into question something, some moms will bring up and will be like, "Should I still allow him to have visits? He moved out." My advice there usually is absolutely. It'll look bad to the court if you suddenly try and, because of your anger at-
Lee Meriwether: Which would be legitimate.
Todd Orston: Absolutely. You have a right to be angry if you're being mistreated but not to, in the eyes of the court, what you don't ... I hate to say it this way.
Lee Meriwether: You have to separate you from your child.
Todd Orston: That's right. You don't have a right to punish your former significant other by withholding parenting time. Oka, but to go to your question. Your question is what could that person do? And really, the first thing would be to focus on the support side. And, you can bring a paternity/child support action and establish child support. And basically what you're saying is, "Look, you don't wanna be with me anymore. Okay, we have a child or children. You are going to support your child or children. And you're either gonna do that voluntarily or not but I'm not even going to wait." 'Cause at Meriwether & Tharp we are not about procrastination, we are not about putting off until tomorrow what you can do today. It is absolutely in your best interest, just like what we said about dads. Don't wait until the relationship with a mom has broken down to initiate legitimation. It is much easier when you're getting along to just deal with the legitimation. The same thing goes for moms. Don't wait. Don't say, "Well, I'm gonna give him a chance to do the right thing."
Lee Meriwether: Maybe he'll come back home.
Todd Orston: Maybe he'll come back home. And I'm not saying do it the next day.
Lee Meriwether: Yeah.
Todd Orston: All right. If you guys are still trying to reconcile and work on things, I get it. Don't let that turn into months, don't let that turn into years. As soon as you realize the relationship is over, go to court, file to get child support, get him on child support so that at the very least you know you're getting some financial support. And more importantly that your child is getting some financial support to make sure that your child's needs are being met.
Lee Meriwether: And I think what's important here is to emphasize that you can't get past due support. So, if the court five years later after the child's birth awards you $1500 a month in child support you're not getting that the past five years. You're not getting that.
Todd Orston: You can't. It's not a matter of maybe I can convince the court to do it.
Lee Meriwether: Right.
Todd Orston: Legally speaking, you cannot get that. What you can possibly get is actual expenses. Usually what we're talking about is birthing expenses and things like that, or possibly if you're the one that's been covering medical premiums or uncovered medical costs and you have receipts to be able to show the court where you can say but for the fathers lack of involvement and lack of payment of support. I'm out all of this money.
Lee Meriwether: Right, the court can award some of that back.
Todd Orston: But you have to keep records. Keep your receipts, keep the documentation. If you don't have that you're not getting anything.
Lee Meriwether: Yeah, so don't wait. Really, at the end of the day just don't wait. Get the process started now. Actually there's a few more things out of the scenario that I wanna make sure ... the first question is if she was helping in that business can she get any part of his business?
Todd Orston: No. If what you're talking about is a situation where the business and everything associated with the business is in the man's name, and she helped grow it. She was there and she basically contributed blood, sweat and tears to get that business off the ground. In a divorce you would have an interest in that business because it was an asset that was created during the marriage and therefore you have an equitable claim. When you're not married, you don't and therefore you'd be really contacting a different type of lawyer to see whether or not anything was done, said or written that you could rely on to sue for some kind of an ownership interest in that business. And I'm telling you, you'd be in a hard position to win that fight.
Lee Meriwether: And I actually saw a, I saw an attorney try to make that argument before that she should get an interest and the courts like, "Not only am I saying no because there's no legal basis for it." He actually hit the lawyer with attorneys fees.
Todd Orston: Yeah, because you don't have legal right. And again, this is not us saying, "Well, the best thing is get married." The best thing in that situation is if you know that you and your significant other are starting a business, make sure the business is in both your names. Make sure you say to that person, "Hey, wait. Hold on one second. Before I pour this blood, sweat and tears into this business I want my name on this business."
Lee Meriwether: Right, so that would mean when you file tax returns your name should be ... there's what's called a K one. Your name needs to be on that K one. There's a lot of things that you would need to do. We used to do business law. That's not what we do now but you would need it ... you should talk to a business attorney. Now, let me ask you this. She was a stay at home mom for several years. Can she get alimony?
Todd Orston: No, absolutely not. Alimony is 150% support paid by a husband or a spouse to a spouse.
Lee Meriwether: Right.
Todd Orston: If you're not married then it would be from a person to a person.
Lee Meriwether: So, there's no legal basis for it.
Todd Orston: There's no legal basis for alimony.
Lee Meriwether: My next question. They broken up, mom can't get these things but she needs to pursue child support. What are the options she has for pursuing child support?
Todd Orston: You can bring your own action for child support and you're gonna hire an attorney, you're going to file, that attorney on your behalf is gonna file a, basically a complaint for child support to establish that initial child support obligation. Depending on your circumstances you might also be able to go to a legal aid department who might be able to help you, but if your income is a certain amount or if they're just too busy that might not work. But child support services here in Georgia. You can also go to child support services and that's a great option for a lot of people. The only thing I will say is, the analysis that child support services hats going to do is going to be less than what an attorney you hire is going to do. The worksheets in establishing Georgia child support can be somewhat complicated. That's not to say child support services doesn't understand them.
Lee Meriwether: Right.
Todd Orston: But sometimes there are nuances. Sometimes there are facts that we can pull out and we say, "You know what? I think this applies and we're gonna plug that into the calculator. And you know what? There's something over here. We're gonna plug that into the calculator." And that can move the needle and change the numbers. Child support services may not be willing or have the-
Lee Meriwether: Resources.
Todd Orston: Resources to dig that deep.
Lee Meriwether: Or the time.
Todd Orston: That's right. To dig that deep and put all that other information in there which could affect the numbers.
Lee Meriwether: I heard today that child support services in Georgia has 400 000 cases. 400 000 cases. And we have someone who, we have two attorneys in our firm that work with child support services or they were attorneys in that arena, and it's overwhelmed.
Todd Orston: We have the utmost respect for that department. It's just that with that number of cases they can't do everything and they can't spend the amount of time that an attorney can spend, a private attorney on your case.
Lee Meriwether: But I think it really comes down to what are we talking about? If we're talking about two parents that make 30 to $50 000 a year it might merit going to child support services 'cause it's really not gonna cost anything. If you got a dad, like in this hypothetical, that has business that's making 60, $100 000 a year. At least that's what they're reporting you can, as you said, you can pull things out of the tax return such as perhaps he runs his car through the business or part of the house through the business. Those things get added back in and a private lawyer can make a big difference when it comes to the amount of child support that you get.
Todd Orston: We're out of time.
Lee Meriwether: We're out of time again. Wow, these shows just fly by. Well, hey, look if there's any part of this show that you wanna hear again you can always go to our website and you can read the transcript, you can listen to the show on our website mtlawoffice.com/podcast. You can also find us in YouTube. It's YouTube.com/atlantadivorcelawyer. You can find us in most podcast directories. Thanks so much for listening.
Speaker 3: This audio program does not establish an attorney/client relationship with Meriwether & Tharp.