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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1544
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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My girlfriend left the state with my 1 month old son. She ...

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My girlfriend left the state with my 1 month old son. She filed a petition for sole custody. I dont believe she has physically changed her residency with the state she is in. I am assuming that living with someone in another state for a month does not qualify as residency, you must physically go to the DMV and register. If I find out that she has not physically changed her residency can I file to have the petition in her state withdrawn or terminated so I can file a petition and have the jurisdiction changed.
Given the facts presented, the answer to the question of your legal righs depends on whether you have been established and declared as being the child's LEGAL father.

By itself, being the biological father of a child born to an unmarried woman does not automatically give you any legal rights, nor does your being the biological father of such a child, by itself, impose any obligations on the mother. Until and unless you are established, declared or otherwise recognized and deemed as being the child's "LEGAL father" through one of the various legal procedural methods for doing so, you are a "non-entiry" in the eyes of the law, meaning that you have no legal rights (and no legal responsibilities). And this is true regardless of where the mother is living and regardless of whether she has any criminal charges pending against her in which you are the criminal victim.

Generally, legal paternity is establishe the mother and the biological father signing a form known as a Voluntary Acknowlegment of Paternity and causing it to be filed with the state's Vital Records agency. Alternitively, you (or the mother) may commence a legal proceeding (either judicially or administratively) to establish your legal paternity of the child.

But until legal paternity is established, you don't have any rights. Why the mother has now "filed a petition for sole custody" is unclear, since there was no reason for her to do so (unless legal paternity has been previously established). Under the circumstances, your best course of action is to file a motion in the court in which the "sole custody" proceeding is pending, asking that the case be dismissed on the basis of lack of jurisdictional authority (assuming you have a valid legal theory on which to make that arugment). Keep in mind that she does not necessarily have to be a resident of the state in which the legal action is filed (although it usually helps). The bigger and more important question is whether the court in which she filed her lawsuit has "subject matter jurisdiction" to hear and render judgment on the legal controversy presented.

You would be well-advised to confer with a lawyer in the state in which the lawsuit is pending for a definitive and specific case evaluation and analysis of the facts and circumstances, and obtain direction as to how and what to do to challenge the court's jurisdictional authority. I wish you wll in the legal pursuits.

NOTE: I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

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Lawrence D. Gorin and 2 other Family Law Specialists are ready to help you
Customer: replied 9 years ago.
Very helpful. Thank you for being honest and no just telling what you think I want to hear.

Thank you for the kind words.
By the way, if the mother has filed a legal proceeding against you in which she seeks a court order giving her "sole custody" of the child, she is necessarily acknowledging that you are her child's biological father and also inherently asking to the court to recognize that you are the chid's legal father.

Also, take a close look at the legal papers she has filed. I have often found that what appears to be a lawsuit seeking sole custody is actually a lawsuit seeking to have the biological father declared as being the child's legal father and then, upon that happening, granting sole custody to mother.

Again, I wish you well.

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