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Stuart J
Stuart J, Solicitor
Category: UK Family Law
Satisfied Customers: 22624
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Can my children (under 10), fathered through marriage (and

Customer Question

Can my children (under 10), fathered through marriage (and with my name indicated on their birth certificate as being their dad) be adopted out to another man, if I have not been able to see them for a period of time? If so, what are the circumstances that can allow this, such as the minimum period of lack of contact before this can be initiated / effected? Also, can such be effected without anyone notifying me? Thanks.
Submitted: 1 year ago.
Category: UK Family Law
Expert:  Stuart J replied 1 year ago.

Why is it that you have not seen your children for some period of time? Has it been anything to do with the child’s mother being obstructive in this respect?

As much background detail as possible is really useful please. Thank you

Customer: replied 1 year ago.
She is. Now she is even saying I need to do paternity test and that after that we can talk. (She separated from me).
Expert:  Stuart J replied 1 year ago.

Firstly, another man cannot adopt the children, if you do not consent, without a court order. The court do not grant such orders lightly. You would literally have to have been out of the child’s life almost indefinitely and of your own volition before the court would even consider that. You would be given notice of that application to allow you to object.

It transpires that you are not the father, the original birth entry can be annotated with an order of the court but it doesn’t change the entry made originally, it just shows the change.

If you refuse a paternity test, there is a presumption in favour of the person who wants to rely on it. Hence, if she is claiming you are not the father and you refuse the test, the presumption is that you are not. If she was claiming that you are the father and you refuse the test, the presumption is that you are the father.

If you turn out not to be the father, and you have paid child maintenance, you may be able to recover some of that.

Although there are private DNA test facilities, only the court approved ones would be acceptable in any legal proceedings.

Does that answer the question? Can I answer any points arising from this?

Please do not forget to use the rating service to rate my answer positively so that I get paid. No rating equals no payment!

You may get the impression that the thread closes after rating, but it does not, it remains open, and we can still exchange emails if anything needs clarification.

Kind regards

Customer: replied 1 year ago.
Thanks. Do you think:1.) if the insistence on paternity persists, mediation will be needful if I want to head for the family court?
2.) after getting to the court, the court will allow me to start seeing the children, while waiting to do the paternity test?
Expert:  Stuart J replied 1 year ago.

The court will always order mediation to be tried even though it may break down. By all means agree to it and try to resolve it that way possible.

I suggest that you readily agree to a DNA test.

The court will only make a court order in respect of seeing the children if you make the application. At this stage, if you are on the birth certificate, then you are the child’s father and there’s no reason why you shouldn’t start that process now

Customer: replied 1 year ago.
Thanks.1.) Am I right to say that what you mean is that the Court will only allow access at the end of the hearing and the DNA undertaken? That is , if mediation fails to deliver.2.) My wife and children, as well as myself are currently in the same county, even same district. If I leave the county / country, of course, I may not be able to see my children more regularly. In such a situation, do I need to re-apply to the court for a modification of access? If so, does this need to be done before / after leaving the country?3.) How long does it usually take to pass through the Family Court? Thanks.
Expert:  Stuart J replied 1 year ago.

At the moment, the situation is that you are the father. You are entitled to apply for contact.

Of course, the DNA outcome may change that and the court may want to wait until the outcome of that before determining the issue.

If you are going to see the children I stand in the court order, you would only need to apply to vary the order if your wife became difficult. The court cannot order a parent to see a child and it will not make a reluctant parent or an impossible one (you living in another country) into one which is keen or immediately available.

It depends on the court loading but you are certainly into weeks and months not days. Sometimes, these contact issues can go rumbling on for years so the sooner you make the application the better.

Customer: replied 1 year ago.
Thanks.1.) In applying for such an adjustment to the order, do I need to do it before leaving the country / county, or after?2.) Do you, by any means, have a rough idea of how much it may take to get this through the court?3.) Please, is legal aid available for cases such as this?
Expert:  Stuart J replied 1 year ago.

I’m afraid that the only family matters where legal aid is still available are child abduction and domestic violence.

If she contests this, such matters can easily cost £5000 or more if you use solicitors but then again, it it will cost her the same although there is no reason why you cannot deal with this yourself.

You can easily make the application for the Child Arrangement Order using the process and the forms here

https://www.gov.uk/looking-after-children-divorce/overview

Customer: replied 1 year ago.
Thanks, indeed.You said, '... if she contests this...' Please, what does 'this' denotes, in this very context?
Expert:  Stuart J replied 1 year ago.

If she contests your application for contact.

I suggest that you get the DNA test done ASAP. Because until then, you don’t really know the way forward.

Customer: replied 1 year ago.
Thanks.1.] You mean contest at mediation / court level? Which one, please? Or, is it either?
2.] At what age can the children be allowed mobile phone usage ?
3.] About the DNA, she said she does not doubt that I am the father. According to her, she said she thinks I personally doubt the paternity. This is despite the fact that I told her that I do not doubt, also that since she does not doubt too, there is no need for doing the paternity test. She advised me to do it, without going to court. That started a couple of months ago. However, yesterday, she said that if it gets to the Court, she will tell the Judge that she is requesting for it because she doubts the paternity. She said all these 'no doubt, if done outside the Court' and 'I will say I doubt, if this gets to the Court' in the presence of two witnesses, yesterday.To add salt to injury, she can not promise the possibility of still allowing contact after the DNA is done. What I plan to do, THEREFORE, is to first ask her (through a lawyer) to answer some questions, including quoting her that she said that I can not see the children, until the DNA is done and to ask her if she personally doubts the paternity. With this, I can have a univocal written evidence (to present at mediation / court) in respect of why actually she wants the DNA done and for record purpose, e.g for the children. I believe that the document in which she responds will be a good evidence before the Court, so that duplicity of position can be easily detected, if she is changing her position. Of course, I will be quite happy to do the DNA, if her request for it is premised on doubt about the paternity, so that her doubt can be dealt with, as expressed doubt glaringly speaks much about fidelity about the time of conception.
Expert:  Stuart J replied 1 year ago.

Mediation is not supposed to be quite so confrontational. At mediation, you say that you want contact and she gives all the reasons why you shouldn’t have it, and if you can’t come to a meeting of minds, then you end up in court. Mediation will not work if neither party will change their viewpoint.

There is no legal age for a child to have a mobile phone.

If she says that she doesn’t doubt that you’re the father but then she is insisting on a test, she is likely to be castigated by a judge for wasting time and money. The judge could conceivably order her to pay the costs of the court proceedings including yours so it’s worthwhile asking if this does get to court.