Legitimate or Lose Out

Legitimate or Lose Out

Posted By Michael Manely, International Family Lawyer || 22-May-2016

I have a sad story to tell you.  I hope that it will crystallyze just how critical it is to legitimate your child as soon as possible, without delay, without waiting, without wasting one more minute.

I talked to a fellow who had a beautiful, bouncing, baby boy.  He and the mother stayed together throughout her pregnancy.  He was there at the baby's birth. He's on the birth certificate.  He was there for the boy's first birthday and second birthday but sometime before the third birthday, the relationship came off the rails.

Mom moved out, and not just down the road.  She moved to another state so that she could be near family.  Dad traveled to the other state several times over the course of the next eight months to visit the child and try to repair the relationship.

About nine months after she had left Georgia for another state, Mom moved out of the country, again, to be near family.  She moved almost a day's flight away.  That had been about five months before Dad and I had a talk.  Mom was apparently quite comfortable in her new digs, new culture, new country. Dad had no idea how well boy was fairing because Mom wasn't talking to Dad at all. 

Dad never legitimated the child, therefore he never rendered his relationship with his son legal. He had zero legal rights to the child. 

Dad had let several opportunities pass in the short course of this child's life.  To begin with, Dad could have legitimated the boy at any time while the family was together.  Legitimation simply means having a judge order that the child is yours.  That forms the legal relationship, though that does nothing toward establishing or protecting contact with the child.

At the same time Dad was pursuing legitimation, he could have been pursuing custody rights, a sub-set of which is visitation rights or access in international parlance. After a judge rules on legitimation, dads have an opportunity to request that the judge order a visitation schedule and order that dad has legal rights to his child, such as the ability to make some critical decisions about the child's upbringing.  Dad could have pursued this while he and mom were still living together.  I often hear dads say that they didn't want to upset the relationship by working through a legal action. "So how's that working out for you," I usually ask. And the answer is always, "not well," considering that they are seeing me about fixing the fact that mom has run off with child and dad is getting no time on task whatsoever.

But here, Dad had done nothing. 

He could have filed for legitimation and custody within six months of the child's removal to another state.  The Uniform Child Custody, Jurisdiction and Enforcement Act (UCCJEA) provides that a state maintains jurisdiction over a child for six months after that child has been removed from the state.  

But here, Dad did nothing.

And now, Mom has removed the child to a foreign country.  The country is a signatory to the Hague Convention so the US has a treaty that governs this situation, but Dad would need custodial rights to enforce a return.  Here, Dad has none so Dad can do nothing under the Hague Convention.

So child was gone, gone, gone. 

If there was a silver lining to this story, it's that Dad is from the same foreign country.  He knows the language and which way the waters run.  He has the ability to fly to that country and try to accomplish there what he did not accomplish here.

So the moral to our story is to legimate early at the first opportunity.  Some dads do go so far as to have everything drafted and ready to go before the child is born.  Not a bad idea.  I haven't seen that strategy go bad yet.

Just remember the old addage, " good fences make good neighbors." Legitimate now so that you don't lose.

Michael Manely

Categories: Family Law

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