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FAQs

The partners at Bivek Brubaker & Prescott, LLC in Marietta, Georgia, answered some of their clients frequently asked family law questions on divorce, child custody and support hearing, adoption and many other topics. Read on to see the answers to these family law FAQs.

Damon’s Family Law Q&A

Q: Paternity test: Remember that your question will be posted in a public forum for all to see. Include all relevant details, but please omit any personally identifiable information.Can i still get a paternity test even though we divorced 5 years ago.. child is 12 yrs old, got the divorce in Georgia. Got married 2 years after child was born, my name is on the birth certificate.

 

A: Damon’s answer: You can certainly get a DNA test. All you need is a hair follicle or other suitable sample from your child. You simply send this off to a laboratory, and they will tell you whether or not you are the biological father to a 99.9% degree of certainty.  The more interesting question is what do you do if the results come back, and it is proven that you are not the biological father. Now you have a situation where you are the legal father, but not the biological father. You will still be liable for support of this child, unless and until you can have the Divorce Decree set aside for fraud. If the child is not yours, then the mother must have known there was a possibility at the time of the divorce that the child could have a different father. Since she failed to disclose this information to the Court or to you, you could argue that she committed a fraud, and file a Petition to set aside the Divorce Decree as it relates to the legal and physical custody of your child.  The first step I would recommend that you take is to go ahead and get the DNA test done. All you will need is the child’s cooperation to get a hair follicle or other suitable sample. Here is a good website for a lab that handles DNA testing.  www.gtldna.net  If the results come back to show that you are not in fact the biological father, then I strongly suggest you consult with an attorney to discuss your options.  Please know that this is a general interest posting and does not create an attorney-client relationship.

 

Q: Where do I file to have the parental rights terminated of the non- custodial parent, if they live in another state.: I have Primary Physical and Legal Custody of my sons. Relocation has been approved by the court . Supervised visits suspended, after two consecutive missed visits.

 

A: Damon’s answer: How long have you lived in Atlanta? If you have resided here for 6 months then you have legally established residency, and you will need to proceed with your Petition for Termination of Parental Rights in the county where you and the child reside. The appropriate Court to file your Petition for Termination of Parental Rights is the Juvenile Court.  If you have not lived here for at least 6 months, then you will need to get the father to sign a Consent to Jurisdiction and Waiver of Venue. There are also very strict requirements in order for you to be successful in a Petition for Termination of Parental Rights. Missing two consecutive visits alone will not be sufficient. If you would like some more information about the specific requirements, then I suggest that you contact an attorney and provide him/her with some more information in a private and confidential setting.  I have handled many termination of parental rights cases in the Atlanta area, and would be happy to speak with you further in a 30-minute consultation, so that you can get some more information on how best to proceed in order to achieve your goals.  Please know that this is a general interest posting, and does not create an attorney-client relationship.

 

Q: I am a single father with a 3 year old daughter. I would like to have full custody of my daughter, what should I do?: I’ve been in my daughters life since she was born. My daughters mother and I were once living together but not in our own home. We were all living with a relative of mine.  Recently, four months ago my daughter moved in with me because she kept getting ill.  I’ve tried to reason with my daughters mom about making better for all of us however, she has had too many hidden agenda’s since then. We are not staying together. I live with my mentor. My mentor and I have set up a payment agreement and that agreement has not been broken. I am attending the University of Phoenix and working at a local Hospital. My daughters’ mother at the moment isn’t doing anything but causing trouble and staying with her mom. What am I supposed to do?

 

A: Damon’s answer: My first question to you is were you and your daughter’s mother ever married? If the answer is NO, did you ever have the child legitimated? If so, what are the terms of the Legitimation Order? If not, you will need to file a Petition for Legitimation so that you can establish yourself as the legal father of your daughter, and request primary physical custody of her as well.  You will need to file the Petition for Legitimation in the county where the mother resides. In order to seek primary physical custody of your daughter, you will need to show the Court that it is in the child’s best interests that she reside primarily with you, rather than her mother. This is a question of fact for the Judge to decide. The more evidence that you can gather showing your involvement in your daughter’s life, the more compelling an argument you can make to the Court.  In order for me to properly advise you on what to file and where to file it, I need the answers to the questions that I pose above, as well as some other information from you. If you would like some information about the costs for an attorney to represent you, and how long all of this would take I suggest that you schedule an appointment to speak with me or another attorney in a private and confidential setting.  I offer 30 minute private and confidential consultations to you, so that you can get some more information about how best to proceed to achieve your goals.  Please know that this is a general interest posting and does not create an attorney-client relationship.

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Melanie’s Family Law Q&A

Q: Are camera and wire taps/bugs placed in home after a divorce is filed illegal?: I have filed for divorce, we have been seperated over 6 months. I have since met someone waiting on filalizing divorce. My ex has lawyer dragging out and since placed cameras, bugs and detection devices in the house. I do not feel safe here any longer and have been told by police since he is on mortgage there is nothing I can do?

 

A: Melanie’s answer: If you have an attorney, please contact him/her and discuss your issue about hiring a professional to “sweep” your house and remove the surveillance devices and/or going back to court for the purpose of requesting an order stating that your husband be restrained from spying on you.

 

Q: What am I entitled to in a divorce from a service member? We have been married 6yrs and we have 3 children.: He has been the sole provider for our household.

 

A: Melanie’s answer: For an overview of a divorce from a service member and what you can expect when it comes to benefits, etc., check-out: www.military-divorce-guide.com. Your next step should be a consultation with a family law attorney to discuss your individual circumstances and further questions you will have regarding a divorce, child support, child custody, spousal support, etc. Thank-you, Melanie Brubaker

 

Q: Me and my spouse have been seperated for 10 months due to military deployment, will that count towards seperation?: me and my spouse have been seperated for 10 months due to military deployment, will that count towards separation?

 

A: Melanie’s answer: If you are asking if there is a required time period that a couple must be separated prior to filing for a divorce in Georgia, the answer is no. If your husband is presently deployed, it is very likely that any action for divorce you would file during his deployment would be “stayed”; that the divorce would be in limbo until your husband has orders indicating that he is no longer deployed.

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Suzanne’s Family Law Q&A

Q: How do I request a paternity DNA test: I would like to know how to go about getting a DNA test on the child that they are wanting child support for.

 

A: Suzanne’s answer: There are several DNA testing sites available that can help you. Of course, you will need the mother’s cooperation if she has custody of the child since she will need to bring the child in for the test as well. I suggest looking online or in the phone book for a DNA testing site near you.  You state that they are wanting child support for this child….has she filed anything with the court? If she has filed a request for child support, the Judge will order a DNA test if you are questioning paternity, but you need to tell the court that you want a test. If nothing has been filed yet, you should still get a test if you are unsure. If the child is yours, you need to talk to a lawyer about protecting your custody and visitation rights, as well as making sure that the child support amount is appropriate.  This is a general interest posting on a public website, regarding general legal concepts. This posting is not, and should not be interpreted to be legal advice to anyone, or to create an attorney client relationship between the poster and anyone.

 

Q: I went to stay with my grandmother for the summer but I don’t want to come back home. My parents take drugs and get drunk: How can I stay here? My grandmother wants custody of me. I need help.

 

A: Suzanne’s answer: I’m sorry for your situation. Your grandmother needs to go see a family law attorney. It is difficult, but not impossible, for a grandparent to obtain custody. Whether your grandmother would be successful will depend on many factors that the lawyer can discuss with your grandmother.  I’d be happy to speak with your grandmother.  This is a general interest posting on a public website, regarding general legal concepts. This posting is not, and should not be interpreted to be legal advice to anyone, or to create an attorney client relationship between the poster and anyone.

 

Q: Father’s visitation rights and non-child support payment: My 7 and 10 year old are supposed to go with their father every-other weekend, but he is very inconsistent at picking them up. Sometimes he goes months without getting them, and then when he gets them he calls me constantly because the 7 year old does not listen to him or his wife. The last time they went there his wife used curse words to refer to him while his father was talking to me, and my child standing there. She has threaten to leave him if my child comes over again, so their father said he cannot come back, but they want the 10-year old to come. She placed him in storage room because they did not want to deal with him. In addition she has slandered my name and my children on Facebook. She has also called me bad words in front of them. He has not paid since April, 2009. What can I do?

 

A: Suzanne’s answer: There are several issues here that need to be addressed immediately.  1. You state he has not paid child support since April of 2009. If there is a court order ordering him to pay a certain amount every single month, you need to file for contempt of court. He cannot simply stop paying child support.  2. You also need to modify the parenting plan and potentially the child support order. It does not sound as though the situation at the father’s house is safe or appropriate for the kids. Further, if he is not exercising his court ordered visitation, you may be entitled to an increase in child support.  You really need to speak with an experienced family law attorney in your area as soon as possible. You need to bring whatever court orders you have to the meeting. The lawyer can help you decide how to proceed.  This is a general interest posting on a public website, regarding general legal concepts. This posting is not, and should not be interpreted to be legal advice to anyone, or to create an attorney client relationship between the poster and anyone.

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