What if my child's father beats me to file child support and I've taken care the child since birth?

Answer 1

Child support will be calculated according to who has physical custody. It is not calculated by who gets to the courthouse first.

First some basics:

It is assumed the parents in this case are unmarried. Generally, if the parents are unmarried the mother has sole custody and control in most states until the father can establish his paternity. Remember, a child's mother can always be identified by medical records.

Since the father didn't give birth and he was not legally married at the time of the birth he must establish his paternity by signing the birth certificate at the time of birth (waiving DNA testing rights) which must be done with mother's consent or he must seek another way to establish his paternity and that is done through a DNA test. He can then establish his paternity legally through the court and once established the father can request visitations, custody and set up a schedule of regular child support payments for the child.

Keep in mind that if the mother has had custody, the father must provide compelling evidence to the court to prove that she is unfit and the child would be better off with him. Custody is not obtained via a race to the courthouse.

The factors used to determine that a parent is unfit are generally governed by state laws with child endangerment being the determining factor. The following include some of the reasons a parent may be declared unfit:

• physical, emotional and sexual abuse
• excessive discipline
• failure to protect the child from abuse by others
• failure to report abuse of the child
• neglect- failure to provide food, clothing, proper hygiene, necessary medical treatment, schooling
• failure to provide proper medical care
• failure to provide day to day parental care
• serious illness or disability
• mental illness
• substance abuse or addiction
• Alcoholism
• criminal activity and/or associations
• incarceration
• conduct or conditions that are seriously detrimental to the child
• abandonment
• child endangerment
• leaving the child unattended or in the care and supervision of a child or otherwise incompetent person
• a failure to provide adequate supervision
• unsafe living conditions
• a medical condition that makes it impossible for the parent to adequately care for the child

The mother should take an aggressive role in this situation and have the father served with an order to submit to DNA testing to establish paternity. Once established she should request a child support order. As long as she continues to be a good, responsible parent she will retain physical custody. The father will likely obtain a visitation schedule.