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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27621
Experience:  Attorney with experience in family law.
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My son is in the USAF in NM. He has been married 5.5 months

Customer Question

My son is in the USAF in NM. He has been married 5.5 months and sife is now 2 months pregnant. She left and went back home to NJ for a family visit of 3 weeks she now calling him not wanting to come back. what are his rights to his unborn child ?
Submitted: 10 months ago.
Category: Family Law
Expert:  Lucy, Esq. replied 10 months ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

In order to get visitation with the child after it's born, he'll have to file for divorce. He does have the ability to file in New Mexico because that's where he lives and where they lived together when they were married. If paternity is disputed, then the judge will probably wait to grant the divorce until after the child is born, but that gives them time to try to work out a custody and visitation agreement on their own. He will be able to have his name added to the birth certificate if she doesn't list it for him, once a DNA test is obtained through the courts.

The problem with waiting to file for divorce until after the child is born is that, at that point, he'll need to file in New Jersey (where the child lives). And a person can't file for divorce in New Jersey until they meet the residency requirement, which means that the mother must have lived there for one year before your son files - and that means your son would be filing for divorce a few months after the child is born. I would understand if he didn't want to wait that long.

The courts start with a presumption that it is in the best interests of the child to have a relationship with both parents. Therefore, he should be able to get some visitation. When the baby is very young, he may need to travel to New Jersey to see the child. Since the mother made this necessary by moving across the country, he can ask that she be ordered to share the costs or deduct a portion of that travel expenses from child support. But he does have a right to see the child once he gets a court order.

If you have any questions or concerns about what I've written, please reply so that I may address them. If I did not address the specific thing that you wanted to know, it may not have come across clearly to me, so please restate that question. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.

Customer: replied 10 months ago.
Im sorry not NJ.. FL. Does it matter. He is in the military so he cant travel when he wants. Can he stop her from taking the child as FL and NM are so far away ? He will not be able to see the child but maybe 2x a year if she stays in FL. Can he get an annulment based on abandonment and fraud ? He wants to be part of his childs life and never imagined her taking off like this.
Expert:  Lucy, Esq. replied 10 months ago.

If the child had already been born, and she were still in NM, yes, he could absolutely get a restraining order that says she can't take the child out of the state - and possibly giving him custody to ensure that she didn't. The problem is, courts are much less likely to restrict a pregnant woman's freedom of movement before a child is born. Plus, if she's not currently in NM, and he served her with notice that he was planning to make her stay in the state until he gives birth, there's a good chance she wouldn't show up at the hearing.

Expert:  Lucy, Esq. replied 10 months ago.

Florida only has a 6 month residency requirement, so if he wants to file for divorce after the baby is born, he could do it there without a problem.

Customer: replied 10 months ago.
They both have FL drivers licenses being they are both from FL but live in NM because of the military.
Customer: replied 10 months ago.
lived in FL their entire lives.
Expert:  Lucy, Esq. replied 10 months ago.

Ok, in that case, they're both considered Florida residents.

Expert:  Lucy, Esq. replied 10 months ago.

That's actually better, because it's EXTREMELY difficult to get an annulment in New Mexico. The parties basically would have to be under 18 when they married, or related. Florida does allow annulment on the grounds of fraud. New Mexico does not.

Expert:  Lucy, Esq. replied 10 months ago.

Fraud needs to be based on the inducement to get married, though. So, if a woman conceals a (current) pregnancy by another man before marriage, that's fraud. Or if a man says he wants to have kids but is actually sterile, that's fraud. The fact that she left, in and of itself, isn't fraud. Your son would have to establish that she told lies to get him to agree to marry her.

Customer: replied 10 months ago.
How $$$ does it cost to handle all this mess approximately total ball park ? as far as custody divorce etc ?
Customer: replied 10 months ago.
Since he lives so far can he allow us or request for us to take the child on his visitation like every other weekend etc since we are the grand parents and live 5 minutes from her residence
Expert:  Lucy, Esq. replied 10 months ago.

Legal fees vary dramatically by location, firm size, attorney education/experience, and other factors. There's unfortunately no way for me to quote a number you could rely on. But your son could try calling a few lawyers in the Florida area where she lives to see if they could give him an estimate over the phone. A good place to read reviews from former clients is www.martindale.com.

He can ask that you be allowed to visit with the child during his visitation, yes. The judge can order the mother to release the children to you. During his parenting time, typically, he's allowed to take the child to visit whoever he wants, so the judge has discretion to allow that.

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