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N Cal Attorney
N Cal Attorney, Attorney
Category: Family Law
Satisfied Customers: 9135
Experience:  since 1983
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I have a 3 month old daughter. She and I live in San Antonio,

Resolved Question:

I have a 3 month old daughter. She and I live in San Antonio, TX and her father lives in FL. He is not listed on her birth certificate as the father and she has my last name. He had paternity papers and custody papers sent to an address that was not mine. The paperwork was sent back to the lawyer. There is a scheduled court date. I am not seeking any form of supprt and I would like to resolve this outside of court. Do I have to appear for the court hearing if I was not served the paperwork? Do I have to comply with a paternity test if he knows he is the father?
Submitted: 5 years ago.
Category: Family Law
Expert:  N Cal Attorney replied 5 years ago.
Do I have to appear for the court hearing if I was not served the paperwork?
No, if you were never served you do not have to respond or appear. Appearing would probably be a very bad idea.


Do I have to comply with a paternity test if he knows he is the father?

If a Court that has jurisdiction orders you to submit the child to DNA testing, you would have to comply.

 

If you and the child live in Texas it is unlikely that Florida has any jurisdiction over this case.

If you voluntarily appear in an action in Florida, you waive the right to claim lack of personal jurisdiction unless your first appearance is a special appearance solely on a motion to quash service of process based on lack of jurisdiction.

 

I hope this information is helpful.

Customer: replied 5 years ago.

She was born in FL, but I moved from there when she was 2 weeks old. Is that considered jurisdiction if she was born in the state of FL?

Expert:  N Cal Attorney replied 5 years ago.
As long as he did not file any court papers before you left, my opinion is that Florida lost jurisdiction when you moved to Texas. An unwed mother has the privilege of choosing the venue for custody and support hearings. It was legal for you to move to Texas with your child, and because of the physical presence of the child in Texas, my opinion is that Texas has jurisdiction and Florida does not.

If you want, you could think about filing a parentage action in Texas. You can get a free consultation from some of the child custody lawyers listed by location at
http://lawyers.findlaw.com/lawyer/practicestate/Custody-&-Visitation/Texas
Customer: replied 5 years ago.
The papers were filed and sent to the address of a friend in Florida. The papers arrived and I was on my way to Texas the same day.
Expert:  N Cal Attorney replied 5 years ago.
If you were not personally served with a summons in Florida, the Florida Court has not acquired jurisdiction over you. See
http://www.flcourts.org/gen_public/family/forms_rules/910a.pdf
Customer: replied 5 years ago.
He told me his lawyer told him that he could hire a PI to locate me and serve the papers at my home or job. Is this true if FL hs no jurisdiction over me? Have you ever heard of secondary serving in FL if you are over the age of 18 years old. He said you're considered served if someone receives the papers over the age of 18. However, the papers were not certified and there was no signature required.
Expert:  N Cal Attorney replied 5 years ago.
There is something called substituted service where the papers are handed to an adult at the defendant's residence or office.

Did they hand the papers to your friend or just mail them?

Do you know if he is trying to file something in the same case in which you were already awarded custody, or is this a different action?
Customer: replied 5 years ago.
There was nothing done previously. I gave birth on Feb 10 th and I left 2 weeks afterwards. The papers were handed to a friend but returned to the legal office because I had relocated out of the state. The address was not my home of record at any time. I never received mail at this address. The only reason he knew the address was because he visited the baby there.
Expert:  N Cal Attorney replied 5 years ago.
You do not have to respond to the Florida action because you were not legally served.
N Cal Attorney and 3 other Family Law Specialists are ready to help you
Customer: replied 5 years ago.
Will this case be dismissed by the judge? Can he prove that the papers were served without a signature? He is going to say I received them or I purposely left before the papers arrived.
Customer: replied 5 years ago.
Will this case be dismissed by the judge? Can he prove that the papers were served without a signature? He is going to say I received them or I purposely left before the papers arrived. Edit
Expert:  N Cal Attorney replied 5 years ago.
You had the right to leave. If he cannot effect personal service in Florida he can file in Texas. If he cannot get you served in Florida eventually the case would be dismissed or he can try to ask permission to serve by publication, but Florida seems to require personal service, see
http://www.flcourts.org/gen_public/family/forms_rules/910a.pdf
Customer: replied 5 years ago.
I spoke with him and he said I'm required to be in court. What legal rights does he actually have if he is not on the birth certificate? Do I have to add him to the birth certificate at any time or change my baby's last name? What is the process? In the meantime he is not providing any support. He is waiting for a scheduled court date to establish paternity, child support, and custody. How long is this process?
Expert:  N Cal Attorney replied 5 years ago.
He cannot force you to go to court in Florida unless you are personally served there, or he gets a court order allowing service out of state. As I mentioned, an unwed mother has the right to control venue of a paternity/child support action. You do not have to do anything he says unless ordered by a Court. You can start a paternity case in Texas if you want.
You can get a free consultation from some of the Texas child custody lawyers listed by location at
http://lawyers.findlaw.com/lawyer/practicestate/Custody-&-Visitation/Texas
Customer: replied 5 years ago.
I received a default of motion for failure to respond. I never received any paperwork that needed a response. What should I do?
Expert:  N Cal Attorney replied 5 years ago.
You need an attorney in Florida to look at the Court file and determine what Proof of Service was filed, if any. And you may need to have the lawyer file a motion to vacate the default based on lack of service and lack of personal jurisdiction.

You can get a free consultation from some of the Florida attorneys listed by location at
http://lawyers.findlaw.com/lawyer/practicestate/Custody-&-Visitation/Florida

I suspect the other party filed a false proof of service but I cannot look at the court file.