The father of my child is not listed on the birth certificate, has not signed an acknowledgement of paternity or taken a DNA test to establish paternity. He filed for primary custody, case is waiting for mediation. Can he file for emergency custody in the mean time without establishing paternity first??? Could it be awarded without a hearing (our child is only a few weeks old)? I ask as he's threatened it.
Until paternity is established he does not have any custodial rights. Once a custody complaint has been filed in Montgomery County, the first step is to go to mediation, as you have stated. Mediation, however, is a voluntary process, and unless you come to an agreement, nothing that happens in mediation is binding. The next step is custody conciliation. You would go before a custody master known as a conciliator to present your case. The conciliator is an attorney who asks like a judge. The conciliator will give her opinion on what she thinks should happen, and if you do not object, it will become an order of the court. If you do object, you can file to have the matter heard by a judge in a full blown custody hearing. In order for a person to file for custody, he or she must have standing. Because paternity has not been established by any of the ways you mentioned above, you an ask for the case to be dismissed until paternity is established.
If you know that the person who filed actually is the father, all it will do is delay the process. He will not be able to file for emergency custody unless he establishes paternity. Anybody could say they are the father of a baby and file for custody, if that was the case. They will not award him any custody without establishing paternity and without a hearing.
With all of that being said, if you know that paternity will eventually be established, keep in mind, he will eventually get some sort of custody and you and he will be dealing with custody issues until your child is 18, when he or she can decide for him/herself. Trying to work through custody issues are best done through amicable means and not left for the court to make decisions for you. There are ways to ease in to a custody situation. Please get the guidance of a local family law attorney who can help you with this process. This is not something you should try to do on your own. I wish you the best of luck in this difficult situation.
Both of you will most likely be required to sign an Acknowledgement of Paternity before the Court will take any actions. If either refuse to sign the Acknowledgement, the Court can order a paternity test.
Until paternity is established he does not have any rights. Since he has already filed for custody and you are awaiting mediation, it would be advisable for you to retain an attorney to represent you. Custody of an infant is much more complex and has different issues involved than custody of an older child. As far as emergency proceedings, not only would they not be entertained prior to paternity being established, they are not entertained period absent an actual emergency situation. Judges are not amused by ER petitions being filed frivolously.
The answer to this question is for informational purposes only and does not form an attorney-client relationship. Licensed in Pennsylvania and Maryland.
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