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Talked to Lawyer, Birth Certificate Continued

futurestepmomnowstepgf's picture

So yesterday bf was able to have a phone appointment with the lawyer he used for the divorce. It is a good news/bad news situation. So basically based on what his lawyer has, the judge only verbally told BM she needed to now change her birth certificate, etc. it was never a written up order. The hearing of this was his second lawyer's last day on bf's case so basically it slipped through the cracks that the old lawyer didn't ask for the judge to write an order for it and it was never put on the new lawyer's radar. Back during the time of this hearing that the genetic results were read in court and taking away bf's rights to the child, I told bf that he should make sure the birth certificate gets changed. Understandably, Bf was not concerned about this at the time as he was distraught about losing the child, but he honestly did not think it could come back to bite him. That is the past and we are where we are now.

So basically the lawyer advised us to write BM a letter threatening her to change the birth certificate or we will pursue legal action and ask for attorney's fees from her. Which is kind of an empty threat because the lawyer quoted us at $3,000 - $3,500 to hire him to do this. Bf's lawyer says since he was the one who filed for divorce and kept pushing the divorce, etc. that maybe BM will take the threat seriously and get scared into doing it. Even if we did hire him, the lawyer said it will be about 4-6 months after he files the paperwork until it is done. We leave in 6 months and then there is the holidays too, so realistically it probably wouldn't be done before we leave.

We asked the lawyer if there are any consequences to bf not pursuing legal action on the matter when BM was supposed to change it and the lawyer said the only thing would be health insurance fraud that he can think of. Bf said that if he gets hit with health insurance fraud, then he will take BM to court no question for the costs, etc. Another scenario would be if BM decided to try and file for child support for this child from bf then bf would just go to court with the testing results, the final divorce decree, statements/proof that he has not been in contact with/seen this child since October 2019, and message proof through the court app of BM stating she knows she needs to change the birth certificate, but has refused to do so, then that judge can make an order forcing BM's hand to do so.

It is also a bit frustrating because we technically could do all this ourselves if we could figure out what paperwork needs to be filed in court. His attorney has only done this sort of thing once before so he said if he did it a lot and knew off the top of his head what paperwork we would need to file than he would just tell us, but since he needs to research, etc. it would be him working for hours for free and understandably we can't ask him to do it, he might as well do the whole thing at that point. We might try and see what we can dig up, but it isn't super common so probably won't be able to do it ourselves.

We finally did hear back from the Marine Corps Service Project Office which asked for legal court documents outside of the genetic testing results that say he was proven in court to not be the father of the child, then they would review this and decide whether they can take her off or not. So if they take her off that would be awesome so then we don't have to worry about health care fraud anymore, but I am not holding my breath since there has really not been any good news on this topic.

So the summary of all this is we are not spending $3,000 - $3,500 to do what BM is legally supposed to be doing. Whether the judge wrote an order or not, it is still illegal, the problem is since there is no order, there would be no penalty of her not doing it yet, they would just tell her to do it. At this point we are waiting to see what the service project office decides, but either way we will be sending BM a letter stating that we are concerned about health insurance fraud, bf needs to be removed from birth certificate, need proof of him being removed, and if BM doesn't remove her then we will need to file in court, pursue legal action and will be asking for attorney's fees. Our last two attempts on trying to do anything will be to call the state's vital statics and see if they have any other information and to call the $35 a half hour line the judge's clerk recommended and see if they can tell us what paperwork needs to be filed to make this happen.

Now the question is when do you think we should send this letter? Part of me wants to immediately especially because if they can remove her from the health insurance part of the letter becomes a moot point or should we wait till after Christmas since BM's latest excuse was she doesn't have the money to spend on this right before Christmas. Anyone have any ideas?


futurestepmomnowstepgf's picture

Should we mention in the letter how BM refused to sign the PSA unless she got to claim SD on taxes last year so she could use the money to move, but never? We were trying to see how we could disprove her claim of not having money in the last year to do it

justmakingthebest's picture

That just sucks!

I would send the letter now. 

One other thing that I might add, and I don't know if this would be helpful. We were told that if the judge tells you to do something it is an order, even if it isn't written. We have gained ground on this because BM's attorney was always famous for submitting final orders that were missing key items. (Attorneys submit final orders- not court clerks in SS's state)

We had to request court transcripts. It was only a couple of hundred dollars- not thousands. Maybe you can send the letter, if she doesn't do what she is supposed to, request transcripts and take her back to court yourselves? 

futurestepmomnowstepgf's picture

I feel like if we wait it isn't good. If it ends up Tricare coming after bf for money, it shows bf did so much to try and get this corrected so the letter just backs it up again, but I guess should do certified mail to prove it was received.

Ah this is true, that might be something worth looking into! It is just so frustrating because as I already have stated is it is not bf's or my job to do any of the work on this. It is BM's mess she is legally supposed to fix, but she just floats through with no consquences yet and doesn't have a care in the world.

HowLongIsForever's picture

Can you contact Vital Records and see what the requirements are/what is needed?

Maybe you'll get lucky and its as simple as a form and the (not home) paternity test, like it is here.  Looks like CA is filing a case for the judge to order, then submitting order & the paternity test (again, not home test) to Vital Records for the update.

Not that I've looked into every state but it does not seem to be insurmountable to tackle on your own.  Time consuming, probably, but I'd be surprised if filing fees were anywhere near a retainer should your state require you to obtain an order from a judge.

Even if you decide to not tackle it because BM woulda, coulda, shoulda, its never a bad idea to understand what is needed.  I'd call Vital Records and ask about the process so that, at the very least, you know how the process is supposed to work.

futurestepmomnowstepgf's picture

child was born in's vital statistics, you need a court order signed from a judge to change it :(.... bf is calling them today just to ensure this is our only option. I wish it was the state of Michigan becaue apparently all you do is file an application and pay $26 to have it done.

HowLongIsForever's picture

The transcript probably won't work for something like that but it would work for a trip in front of a judge to get a specific order.  

If that's what Vital Records needs in your state they're going to need it whether its submitted by your BF or BM - and you know she's not going to court. 

Personally, I'd just handle it.  Small claims her for the money if need be, you are allowed to reasonably charge for time as well (here anyway), but then its done. 

It takes the risk off BF where fraud is concerned, the mental and emotional weight is gone and its one less thing she holds over you guys. 

Okay so she gets away with not having to do the work herself but by doing it you take away her options and her power.  Its not important to her, she doesn't need or necessarily want to change the status quo.  She is never going to take the initiative unless it will twist the knife.  However you may perceive her to win or lose, you still walk away with exactly what you need. 

Her paying you in 6 mos, court awarded or otherwise, doesn't change her plan to not pay it right now "because Christmas" but it keeps you guys from waiting until she gets around to it, and whatever repercussions her inaction may have for you.

futurestepmomnowstepgf's picture

$3,500 that isn't going to our cross country move and we know we will never see that money court awarded or not. We have been saving money and have quite a bit, but it might financially hurt us when it comes to our move if we spend the money on this instead. We cannot and would not away postpone our move because we spent the money on this instead.

I like someone's suggestion of seeing if the lawyer will send the letter so it seems more threatening then just coming from bf. If we can get the child off of bf's health insurance through the service project office, then we are in the clear. Still want the birth certificate changed, but it isn't as time sensitive

HowLongIsForever's picture

Oh I didn't mean hiring the lawyer as representation, I meant filing yourselves.  If the transcript shows it was instructed it shouldn't take much to get a hearing to get it ordered - if the VRs office won't accept the transcript (I would think they wouldn't but who knows).

Then you have your order, you've already got the court ordered paternity test, submit them to VR.  Just small claims BM for the costs you put into it - filing the motion, your time in court, whatever VR fees are (if any).  It shouldn't be anywhere near the cost of your attorney's retainer.

Also, if he's willing to write a letter at minimal cost he's probably also willing to review a document before you file it rather than him do the research, file and actually represent BF - just something to think about.  A la carte services are typically just the hourly rate.

Good luck!

PokaDotty's picture

Have you considered paying to have the attorney send the letter? We did this on a matter we were dealing with that stated if not resolved that we will pursue legal action and request for attorney fees. The letter cost us $100 but having it come from the attorney gave it more teeth and BM complied without needing to litigate.

futurestepmomnowstepgf's picture

if we wanted the attorney to send the letter we needed to hire him on.