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Dana Joseph Stewart

Dana Stewart’s Answers

59 total

  • Family law, if a mother and father are not married and have a kid together what are the fathers rights?

    my boyfriends ex is threatening to take his child away saying he has no rights to her. Just wondering what a fathers rights to his kid is, if they were never married.

    Dana’s Answer

    Going off what the previous attorney said - your boyfriend needs to first establish that he is the father of the child. This can be done through a paternity test or, in Texas, a father can sign an Acknowledgment of Paternity and file it with the Bureau of Vital Statisticsand therefore the father will become the legal father of the child. I am not sure if your state has a similar form.

    Once your boyfriend's paternity is established, he will have all the rights and duties that any parent has (assuming the court does not strip him of any rights). Among these are the rights to possession/custody, to make decisions concerning health care and schooling and the duty to love, support and care for the child.

    Your best option is to consult an attorney in your state. Many attorneys offer a free consultation and it would be wise to learn everything you can about the situation so that you and your boyfriend will know what to expect. Best of luck.

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  • I have full custody of my son. Should his dad contact me before hand about visitations or just assume when we will meet?

    I live over an hour away from my sons dad. I have asked that he call me to confirm when and where we will meet at least the day before if not sooner so that I can plan on it for sure. It has become a huge deal and causes a lot of fights. He say...

    Dana’s Answer

    The answer to your question depends on what your final decree of divorce states. Or, if you and the father were never married, then the answer depends on what the final ruling of the SAPCR (acronym for Suit Affecting Parent-Child Relationship) states. For example, if the court awarded you with sole custody, this means that you have the sole right to make all decisions for your son. However, his father may have been awarded some sort of possessory right (aka - visitation). If he was, then you need to comply with the terms of the court's decision and allow him to see your son at the days and times listed in the document. If you want to get the days/times he is allowed to see your son changed, then you will have to get the court involved again.

    If the father was not given any possessory rights, or if his parental rights were terminated, then there is not a court document forcing you to give him access to your son. If this is the case, then you decide when and where he will see your son.

    I don't know if you used an attorney to deal with this situation in the past. If so, you may want to call him/her and ask your question(s). I am licensed in Texas, so I am basing my answers on Texas law. So, depending on what rights he has will dictate what you need to do. If he has no rights, then you call all the shots. If he does have rights, abide by them - and if you are unhappy with his actions or the current arrangement, get the court involved to redefine the terms of the custody. Best of luck.

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  • Is it necessay to retain an attorney if you have been designated the executrix of a will?

    My wife,s mother passed away on 3-7-09

    Dana’s Answer

    No, it is not necessary for your wife to hire an attorney. Since your mother-in-law created a will, her intentions and wishes of how her estate is to be distributed will be listed in the will itself. As the executrix, your wife should offer the will for probate.

    Some of her duties include: disbursing property to the beneficiaries as designated in the will, obtaining information about any other potential heirs, collecting and arranging for payment of debts of the estate, ensuring estate taxes are calculated, necessary forms are filed and tax payments made. Usually the executor/executrix is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate.

    Depending on the court, probate can take a several months to complete. So, be prepared for a long process. If your wife feels overwhelmed with the job, she can have the court appoint someone else. Either way, you don't have to get an attorney involved to help her.

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  • Work status pending, In case it's denied, can we leave and come back after a month or two as tourists?

    Hi! My husband has applied for an L-1 extension. We used premium processing so we should get an answer very soon. In case the petition is denied, can we come back as tourists a couple of months after our visa expires? Is there a minimum time you ...

    Dana’s Answer

    If your husband's L1 application for extension is denied, you will have no more than 180 days before you are supposed to leave the United States. Assuming you leave when asked, then you are absolutely allowed to apply for a different type of visa (eg - a B2 visa, which is a visitor visa). The amount of time you are authorized to stay in the United States will obviously vary based on the type of visa you are approved for.

    Since you paid the extra fee for premium processing, you should have an answer within a couple weeks of the filing date. If your husband's application is denied, make sure you do not stay in the country longer than you are supposed to (eg - 180 days). If you overstay, then from the time you finally leave, you will have to wait 5 years before you are eligible to apply for another visa. Best of luck.

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  • If during the time that I was married and a DNA test proved that the child is not mine; do I still have to pay child support?

    My wife was cheating on me during the course of the marriage. I am not sure if the child is mine. Will a DNA test make difference on the child support?

    Dana’s Answer

    In a word - YES. A paternity test could change everything. When a child is born during a marriage, the husband is the presumed father of that child. If the results of the paternity test confirm that you are not the father, then your legal rights and duties to the child are terminated.

    One thing to keep in mind - the Texas Family Code states that when there is a presumed father, a proceeding brought to adjudicate (determine) the parentage of the child must be commenced before the child turns four years old. So, depending on your child's age, you may have to act quickly. Talk to an local attorney. Best of luck.

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  • Will what I do for living hurt me in a custody battle ?

    My son has lived with me from day 1 .He is now 4. The father is not on the birth certificate but my son has his last name .My sons father and I were never married. The father has never helped out and he is a drug addict. I am a part time escort . ...

    Dana’s Answer

    When dealing with a custody issue, the courts always make every decision based on what is in the best interest of the child. Typically, it is in the child's best interest to have both parents in his/her life. However, if one or both of the parents are not deemed to be "fit" they could be removed of their possessory rights.

    In your situation, the court will not look favorably on your job as an escort. But your ex doesn't have it much better considering that he is a drug addict. You are making the right move by enrolling in college. You should also try to change jobs. Do anything you can to prove to the court that you are not a threat to your child and that it is in your son's best interest to be with you.

    As far as your ex, if he is using drugs (or has recently), when you go to court for the SAPCR (acronym for Suit Affecting Parent-Child Relationship) suit, you need to inform the judge that your ex abuses drugs. Request a drug test, but know that you may have to pay for it. Keep in mind that you will more than likely have to take the test as well. If your ex fails the test, he will have a tough time getting sole custody. Also, since your son has been with you for four years, without cause, the court will not award your ex with sole custody.

    When dealing with custody issues, you need to get a lawyer. This is a serious matter that will have profound effects on the rest of your life. Best of luck.

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  • My question is what state do i file for custody in?

    me and my boyfriend lived in florida and had a child. my boyfriend sent me and our son to live with my father in michigan. now my boyfriend broke up with me. my question is what state do i file for custody in?

    Dana’s Answer

    Assuming no other county has jurisdiction over the child, you typically file a custody suit in the county in which the child resides. A child resides in the county where the child's parents reside. In your situation, since you and your ex live in different counties, your child is deemed to reside in the county of the parent that has actual care, control and possession of the child. That was a long way of saying that you should file your custody suit in the Michigan County that you reside in.

    Note - I am a Texas lawyer and this answer is based on the law here. Please consult a licensed Michigan attorney. Best of luck.

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  • I am not married and my name is not on the birth certificate but my son has my last name. What do I do for custody

    My girlfriend has been staying out all night and not even coming home for 2 days at times, when I ask her where she has been she ignores me and threatens to leave with my son. She lives for free in my home aand pays for nothing. I don't know what ...

    Dana’s Answer

    I am going to answer your question, but keep in mind that I am licensed in Texas, so my answer will be solely formulated on Texas law. To establish your paternity there are a couple things you could do: 1) take paternity test or 2) Sign an acknowledgement of paternity (claiming that you are the father) and file it with the Bureau of Vital Statistics.

    Something to keep in mind, in Texas, since you are not married, if during the child's first two years of life, you continually reside in the same house as the child and represent to others that you are his/her father, then there is a presumption that you are the father.

    However paternity is established, once you have it, then you will have legal rights and duties concerning that child. If you and the mother are having issues, you may want to file a SAPCR (acronym for Suit Affecting Parent-Child Relationship) suit. This is determine things such as custody, financial support, and more. But, you will still need to establish your paternity.

    You should definitely seek advice from an attorney in your state. Best of luck.

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  • Is my girlfriend entitled to what i have bought since we have lived together as a family for a year and a half?

    i have been in a relationship for 2 years with the same women. We have a 16 month old son and we have all live together since he was born. i bought our house, furnished it, pay for all the bills and finances. we are splitting up and she says th...

    Dana’s Answer

    Although you may never have gotten married, the legal system could view your relationship as a common law (informal) marriage. Perhaps you have heard of this term before. Unfortunately, this is a lot of misconception about what constitutes a common law marriage. For example, many people believe you must be with the other person for a specific time period, but this is not true.

    There are three elements needed in order to establish a common law marriage:

    1) The man and woman must agree that they are married,
    2) They must cohabitate (live together) as husband and wife, and
    3) They must hold themselves out to others as husband and wife.

    Without more facts, I am not sure if your relationship would qualify, but if it does, then upon a divorce, your spouse would be entitled to a "fair and equitable" distribution of the community property. This is commonly referred to as a 50/50 split between the husband and wife, but it doesn't have to be. If one party has committed adultery, then he or she could receive less than "50" percent of the community property.

    Texas law presumes that anything acquired during marriage is community property (exceptions are things like a gift, inheritance, etc - which are the separate property of the receipient). If your house was bought during the marriage, then the presumption is that it is community property. However, you can overcome this presumption with a method know as "tracing." Bascially, if you can prove with financial statements that you paid for the house with your own separate funds, then you could get the house as your sole property.

    I hope this helps you out. You should really talk to an attorney because you have a lot of possible issues to deal with. Even if you are not informally married, you still have a custody issue to deal with. Best of luck to you.

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