WTDW Podcast | Episode 39: What To Do When.. You Are Expecting.

by | Jan 6, 2023 | Audio, Divorce, Family Law, Jackie Critzer, Media, Scott Cardani, Video, WTDW Podcast

You Are Expecting.

Pregnancy, Expecting a baby, Paternal Rights, Parenting, Custody

What To Do When.. You Are Expecting.

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What To Do When.. You’re Expecting.

What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.

Jackie Critzer 0:28

Hi, welcome back to Critzer Cardani and our podcast What To Do When…

Scott Cardani 0:35

What’s on the docket for today, Jackie?

Jackie Critzer 0:36
So today, it’s What To Do When You’re Expecting. Seems like a an appropriate topic.

Scott Cardani 0:43
We’re not talking about the medical, right?

Jackie Critzer 0:44
No, no.

Scott Cardani 0:47
Yeah, we wanted to discuss today. And for those you don’t know, my (legal firm) partner is pregnant right now, maybe I shouldn’t have said that on the air. But you know, it did prompt our thought process. And we thought, you know, this comes up a lot, actually more than you would think. And we wanted to discuss a little bit so you know, your rights, both as the father and the mother of the situation. And sometimes people just don’t understand what their rights are, what their responsibilities are all those things. So we thought we would cover that. And it was timely with everything. And then, of course, I wore my swag today, which is our Critzer Cardani logo.

Jackie Critzer 1:22
I just match the color scheme. So it works.

Scott Cardani 1:24
It works. So, we’ll go forward. So Jackie, you’re pregnant?

Jackie Critzer 1:28
I am.

Scott Cardani 1:29
You’re married.

Jackie Critzer 1:30
I also am married.

Scott Cardani 1:32
So let’s talk about Darrell’s…

Jackie Critzer 1:35
And it’s his child.

And it’s his child.

Scott Cardani 1:37
No questions about that. So what’s his rights right now?

Jackie Critzer 1:44
As to the child?

Scott Cardani 1:46
Yes, to the child.. sorry.

Jackie Critzer 1:47
He doesn’t have any rights to the No way. Right. So not only does he not have any rights to the child, mostly, that’s because the law doesn’t really recognize the life until it’s a life in being. So once it’s born. And we’re not talking about abortion, that’s a very different topic for a very different podcast. But the law doesn’t recognize that there’s there two people involved in the making of the baby, the law recognizes that it’s inside of my body. So if I want to have an amniocentesis, I can if I want…

Scott Cardani 2:31
What’s an amniocentesis?

Jackie Critzer 2:32
So that’s the big fancy word for extracting some of the amniotic fluid which carries risk with it. And you can determine a whole bunch of things up paternity, you can determine paternity through an amniocentesis, you can determine some genetic malformations and a lot of varying things with an amniocentesis. But really, the question is, Can could my husband, or my partner or the father of my child, asked me or direct or order me or compel me…

Scott Cardani 3:06
Through the court… like go to court and say, I want to know if this is my baby right now?

Jackie Critzer 3:10
Right… Could could a man do that while the woman is pregnant? And the answer is, No, you can’t make her do anything. You can’t make her stop smoking weed, stop smoking cigarettes, you can’t make her stop drinking. It’s not a crime for her to do legal substances, even though if not appropriate, or not recommended by the American gynecological folks, but you just you can’t make her do anything. There’s no you have zero control as the partner or the the child’s father.

Scott Cardani 3:45
Yeah, it’s really interesting. And I want to emphasize and he said it, but just remember, if you’re going to talking about am amniocentesis, make sure you look at the risk that it’s not as simple as that. But there are a lot of risks on both sides. But anyways, moving forward, it’s really important to know that because I think a lot of times when two people conceive a child together, you know, there’s this expectation. And fathers need to know, you don’t have any expectation, no child support, no, nothing. I mean, if they’re wanting to walk off in the sunset and say, I’m not doing anything and see when the child is born, he could do that. So that’s how the law looks at it. We don’t believe that. We don’t think that but we’re just kind of talking about how the law is and what the law is, what the law is currently and how the state of the law is. So it’s really, you know, what if take it to the next scenario, you’re unmarried. Okay, same scenario. You know who the dad is? No question. There’s no question of paternity and even if there was, could a father in that situation somebody who knows that he’s the father? Can he make you stop drinking the smoke can make you take a test anything like that?

Jackie Critzer 4:56
There’s nothing that that an outside person – outside of me can make me do during the pregnancy.

Scott Cardani 5:04
Well, let me ask a question. So say, Daryll. Well, I don’t want to go there. Let me try another scenario. Let’s just say, guy and girl get together, get girl gets pregnant. Turns out that girl for whatever reason, maybe it’s a legitimate reason maybe it’s an abusive situation or something else and she wants to go to California Hey, okay. Can I stop her?

Jackie Critzer 5:29
No.

Scott Cardani 5:29
Why not? It’s my child in there.

Jackie Critzer 5:33
It’s not recognized as a life in being. Like you couldn’t file custody over a fetus.

Scott Cardani 5:41
Or, and trust me, I’ve tried it when I was first started. So I mean, I tried to do those things, because I thought it was important that somebody shouldn’t be able to just take off and disappear. So what we’re saying is, literally, Jackie could just go off grid.

Jackie Critzer 5:55
I mean, married or unmarried, in all truthfulness, I could just take off. Now if I There are so many. Yes, things in that but but for sure, if I wasn’t married, if I were not married, and the I knew the father, I said, Hey, this is your baby. We knew maybe we even did an amnio, maybe we just knew that we knew that we knew hit does doesn’t matter. I could go to Canada, Australia, anywhere. And there’s would be nothing he could do but follow me.

Scott Cardani 6:23
Yeah. And the laws are very different in different states, and especially different countries, man, you start getting that kind of stuff. There’s crazy stuff going on. But so we’re gonna say, I just think a lot of people get confused. And and rightfully so I mean, quite frankly, I mean, I’m of the mind that, you know, when two people conceive a child, two people conceive the child could have been done by one person. So I don’t like the way the law currently reads. And somebody will probably not like that, that I don’t like it. But I just don’t like it. Because there’s a concept here that says, Jackie gets to make all the decisions, whether she has the child doesn’t have the child or she runs away or whether she doesn’t. But when when that child comes out, I have no decisions I can make as to whether I support that or don’t support that. So to me, it’s the law isn’t logical. And it doesn’t make sense because it should be the same the whole way through from my perspective. And that’s where I look at it because I don’t think you know, you don’t get any rights here. You get rights here. It’s just kind of weird to me. So, but…

Jackie Critzer 7:24
So if you can’t determine if you can’t force her to Herman, paternity, while the child is in utero? The next question is, well, when can you require that the child go through some sort of paternity determination.

Scott Cardani 7:40
And that’s like you said it until that child is born. And like her saying, I just want to say this, because I think it’s very clear, say, Jackie’s pregnant, she takes off to California, California, I do that on purpose. But anyways, she’s there, she has the child. Now I have some rights, but California laws in play because the child was born there, right? I still may be in Virginia, the likelihood of me compelling her back at that point is probably slim to none. And then on top of that, she can just go down to the courthouse and order support, so I can start paying support in Virginia, while she’s in California never get to see my child because maybe my work, I can’t leave because I don’t have a job out there. I personally would probably just leave and go and make happen. But I’m just saying there’s a lot of factors in that that really complicate and make the law not very amenable to fathers, especially at this stage. I mean, at the at the pregnancy stage.

Jackie Critzer 8:35
I think that’s a fair statement. And so when so when can you at the hospital? So what if, what if you’re at the hospital baby’s born same day, can can dad ask for a paternity test at that point? I mean, I think I think so. But I don’t know. I don’t know what all the medical rules are at that point.

Scott Cardani 8:52
Well, I can but the question becomes, does he get put on the birth certificate? If he’s in the room? And he’s father?

Jackie Critzer 8:57
And are they different? So this isn’t, this is an important distinction. There’s a difference between taking a blood test and determining you are or are not the dad like on some of those afternoon TV shows.

Scott Cardani 9:09
Which we never get to watch.

Jackie Critzer 9:12
Versus not taking a paternity test, but being placed on the birth certificate. So what happens you take a test and when when it’s pretty clear then but when 99.99% Sure, right? That the dad is or is not the dad. But then what happens if you don’t do it paternity test, and you are on the birth certificate?

Scott Cardani 9:33
Are you saying what if I have a question? Like all of a sudden I was in the hospital with you? You had the baby there? I’m not taking your place. Anyways, I’m there. And they put me on the birth certificate. Yeah, five days later. Yeah. Found that you’re married today or when? You know, we weren’t even together was just a figment of my imagination. I didn’t know I was at the hospital. Anyways, so there for at that point.

Jackie Critzer 9:57
What do you mean what do you do? Wait there’s a presumption there is under the law, by the way, if you’re on the birth certificate there is there is a presumption there.

Scott Cardani 10:07
Yeah, for instance, at this moment, now, I’m on the birth certificate Jackie could go apply. Even knowing that I’m not the father for real, she could go apply for child support, and I’d have to pay. So unless I do what’s called…

Jackie Critzer 10:22
A petition for paternity.

Scott Cardani 10:23
Yes. So I go to the court. And I can ask, it’s usually done. The juvenile court is a very simple petition, its invitation for a paternity test. And so at that point, the court would order 99.9% of the time would order a test, right. And that would be the easy test, because the child’s out, they can do all kinds of DNA swabs and get things easy ways. And there’s no real mystery to how they do that, or any safety issues there. So then, you know, then in, find out, and so if I turn out not to be the father, listen very carefully. That doesn’t end my child support at that moment, if I’ve already been ordered to child support. And I do the paternity test and says, Oh, you’re not the father.

Jackie Critzer 11:03
Well, now you’ve just done it all backwards. Now you’re in big trouble. Now I’m in big trouble. So let’s take it in the best order. Okay. baby comes out. Paternity test is done. Are or not the father, great. The next step, you are on the birth certificate, but you’re not totally sure that you’re the dad. And mom says, I want you to pay support. I don’t care whether you’re sure or not, I’m sure. Sure you’re sure. And so then she says, I’m going to the courthouse I’m filing for for support. That says, Okay, fine. Well, I want a paternity test, which most of the time is so offensive to the mom. I don’t Yes, it just is. Just be aware. It’s very offensive. I can’t wrap my head around it, but it’s offensive. And so then, while the petition for support is waiting to be heard in the court, is the time to get the paternity test.

Scott Cardani 11:55
Yes, exactly.

Jackie Critzer 11:56
If you reverse that order, okay, and you are ordered to pay support. And then you’re like, Oh, I’ll figure out paternity next year, next week, next month, next five years. You’re stuck. That’s it. The law says you’re done. If there is an order for support, I have had several judges here in our in our Richmond area say, Sir, do you understand that if you accept this child support order this agreement, that you are going to be on the hook for support forever? Because you’ve not done a paternity test? I’ve had a few judges, ask my clients was I’m standing right there next to them as though I didn’t advise them properly. I don’t get offended. It’s fine. Ask away. And then I say they’re asking because if you aren’t absolutely sure that you’re the father, you’re going to be on this child support. Until mom says you don’t have to be which isn’t likely to happen.

Scott Cardani 12:48
And folks, you know, this is sounds horrible. But in the business we do we run into problems all the time where people swear up and down. There’s nobody else and no way it could be the way it could be no way no way possible. It had to been somebody in planting a syringe when I was sleeping or whatever I mean, and lo and behold, I mean, it is like the afternoon TV shows you see it all the time. And so you know. I don’t know what I’m trying to say. But you know, whether it’s not. I want to say platonic, but it’s not what is it? Whether you’re in one relationship, and you believe that to be the case.. And you’ve always believed that to be..

Jackie Critzer 13:28
Monogamous.

Scott Cardani 13:29
Monogamous sorry, could not pull that word out of my head. But anyways, those are things that sometimes there’s a legitimate question. And I want to say something that might blow people’s brains. But we had a few of these in the city of Richmond, where if you have close family members all the way down cousins and stuff that 99% doesn’t cover them. So people don’t realize I mean, return to you only take so many, what are those little can’t think what they’re called chromosomes, no more, I can’t remember off my brain. But anyways, returning it looks at so many of those markers, the DNA marker, the DNA markers. And so when you when it’s family and his close family, they don’t go deep enough to really know. And there was a lot of that the old OJ Simpson case and stuff and DNA and how those markers work. And I remember talking through that when it was there. But I remember a couple cases in Richmond, where there was question whether it was two brothers and they were twin brothers. There’s just no way to determine it through a paternity test. We don’t have the markers and even cousins, I remember one case where it was a cousin. And really in the end, that Paternity Test wasn’t enough, but the judge went with it because he had nothing else. Well, I determined that you’re the father and I’m like, Well, wait a minute he was out of he was in North Vietnam fighting the war when that happened, and there’s no way but right. So just want you to know that and I know it sounds crazy, but we know there’s crazy situations out there.

Jackie Critzer 14:59
Technology also keeps moving forward, especially in the DNA testing. And I mean, cold cases are getting cracked all the time because there’s developments in that DNA processing. But but the point remains that, you know, it’s important to do a little homework and do a little research. When you are when you’re when you’re not married. But what about when you are married? Is there a presumption under the law?

Scott Cardani 15:24
The presumption is it’s your job. Absolutely. It’s the presumption under the laws if Darrell and Jackie, have a pregnancy right. Now, the presumption is that Darrell, is the Father by marriage, he would go on the birth certificate via the via the marriage, even if he does protest.

Jackie Critzer 15:42
Correct, the presumption is that he is the Father. And that’s a legal presumption, not just because I’m married and faithful. But because it’s a legal presumption. So can you overcome that? Is it rebuttable?

Scott Cardani 15:54
Of course, of course, it’s the same thing. I mean, you gotta go File paternity test. And you have to do that, like Jackie says, Man, you want to talk about in a marriage turn up a hornet’s nest. But again, we see these things, and we have to talk about them. Because their realities, I can’t. I would say the numbers over 10. In my career that you know, that we found out surprise, you’re not the dad, I had a guy who had been paying support the kid had was close to being 18 before he found out. And there was a reason he had to find out. And it really had nothing to do with court or anything, he found out through some other means they were doing some kind of typing or something for some kind of sickness or something and turned out. And he was just devastated. He’s like, I had no idea. But he realized that that moment as well, I’ve been his father, his whole life, DNA is not going to change that I raised him. And I really appreciate that he switched immediately. I mean, he was done, though shocked and hurt and all those things. But, you know, I’ve seen some crazy thing. So….

Jackie Critzer 16:53
So I have a hypothetical. Okay, that truly, like most of our hypotheticals really have nothing to do with either one of us. So, disclaimer, it has nothing to do with me. If a man and woman are married, okay, and she gets pregnant, and she did, in fact, have an affair, she was messing around. And it turns out that maybe husband really hadn’t been intimate with her in the timeframe necessary to create this child. Okay. And the boyfriend, Paramore whatever knows, to a reasonable degree of certainty that he was with her relatively close to the right time. What rights does he have if it’s presumed under the law that the woman’s child belongs to the husband?

Scott Cardani 17:43
Yeah. Want the answer? Because it’s not good. Yeah. My understanding is he, again, the presumption goes to your husband, and then he, the husband would have to be the one that says, I guess you could get the paternity test, you can always do that. You can request it. I mean, it’s not the father doesn’t have to request the paternity test, the mother could do it.

Jackie Critzer 18:06
But what if the What about the Paramore and when we’re talking about John Smith, John Smith says, Hey, I know that’s my baby, and I want to be a part of my baby’s life. I don’t care that I’m gonna have to pay support, I want to pay support. I don’t want to be a deadbeat dad, I want to be involved not only want to pay support, I want to see this child. Which I’m laughing because it’s true. It happens. They want to see the child they want overnight visitation, they want shared custody, for crying out loud. I mean, what can can the boyfriend Paramore person? Can he demand? Can he go to court and request a paternity test?

Scott Cardani 18:44
And the question becomes whether the court determines him at party of interest and he can file. And that’s gonna be a pretty lengthy petition, I would think and pretty sympathetic judge a lot of times people just aren’t interested in going down that road, quite frankly, and you can get a lot of roadblocks. That would be a very, very, very problematic situation, we can help me, we’ll help you. But that’s a very, very tough situation.

Jackie Critzer 19:11
It is. One distinction that I’ve come across in the last few years is whether if you’re on the birth certificate, does that mean you’re locked in to child support? In other words, you say, oh, today, the baby’s born and I’m the dad and you learn a couple of years later, a couple of months later, whatever the case may be, maybe not maybe that child as you see it, because when they come out their little faces are all fat and wrinkly. And you’re not really thinking they don’t really look a whole lot like either person a little bit some resemblance. But maybe this child you need to learn is really nothing like the child you. It doesn’t look like you and then you want to get a paternity test. The question is under the law, if you’re on the birth certificate, does that mean you’re stuck paying child support. And there’s case law in Virginia that says No, but I’ve had judges get it wrong. And the case law says that the birth certificate is not the same as an order. But once there’s an order entered, that questions answered, and it’s done.

Scott Cardani 20:15
Yeah, that’s, that’s something really important to understand them. Let us be very clear about that once that order of support is entered, and you’re the husband by marriage, you’re in a world of hurt. It’s wrong time to ask question. Do we encourage people to ask questions like this for no reason? No, that’s not what we’re talking about, of course, not what we’re trying to say, as these things come across our practice, especially when I did all the Guardian litem work of stuff in the city for 10 years. When I was downtown Richmond, it there, there was a lot of these questions that came up. A lot of these issues that came up, and it was really heart wrenching and tearing people up in here and families up. And it was something that people need to understand. And I think you need to understand that when you’re in this situation of making mature adult decisions and sleeping with people and understanding that. And I think it’s more for men, and quite frankly, to understand their rights and where their rights kick in and where they don’t. Because your life doesn’t really change as far as the law when you get pregnant.

Jackie Critzer 21:16
Correct.

Scott Cardani 21:16
You know, knowing where you come in as a father really does have a play in the law. And when that child is recognized as a child that you get to have some say over.

Jackie Critzer 21:27
I think it’s important to just to take a moment and really talk to the to the mom to while you wield a lot of power in this scenario. It’s not for nothing, right? It’s not just I want him in the baby’s life, I don’t want him in the baby’s life, I want money, I don’t want money. It’s really important to consider what this child’s life will be like, with these men or this person in their life or not in their life and weighing that and balancing that it’s not just a decision you get to make in a vacuum. But the law and what the research shows, lots of statistics show that children that grow up without fathers just don’t do as well in adulthood. By the general rule, there are exceptions where single moms do a great job. And cheers to you single moms who have done a great job and raised awesome, awesome people to become awesome adults. That’s terrific. But the but the statistics show, that intact families or at least children who know their fathers, and have a relationship with their fathers, and their mothers just generally do better in life, they’re more productive in school, they’re more productive, they go on to college, they get the college education, and then oftentimes are productive members of society. So I would just encourage you to really consider the power that you do hold, because we’ve really just sort of outline to all the dads how much power you have. And it is a lot and it’s it’s heavy, and seeking counsel and wisdom from those who have maybe either been through this or calling us and letting us you know, help you walk through this in the decision making process, not for us to tell you what to do, but to help you organize your thought process and to figure out what your next right steps are for you and the child. You know, we’re always here to do that as well.

Scott Cardani 23:13
Yeah, and just want to say, the last thing I’ll say is, you know, we’ve walked some people through this situation where good counsel can maybe help resolve some things that because of the tension between the party sometimes I haven’t, that third party is kind of like a mediator. And, you know, I was in a situation, once were, the two counsel allowed the amniotic thing, just to just so the family would know how to move forward. Because it was to young people, they’re moving on with their lives, there was all kinds of decisions in the balance of what to do, when to do how to do. And knowing that, you know, in this case, it turned out that dad was Dad and Mom was mom, and they both had to adjust their lives, you know, because of that. And it was good for them to know that. And sometimes, you know, especially younger people there, we just don’t understand, like Jackie said, the power you hold. But really, Virginia has that statutes, the best interests of the child. And sometimes you have to really wrap your brain around, what’s the best for my child? And what do I need to do and what’s the best course of action and sometimes, waiting to that nine month period to the baby’s born, you know, may change the dynamic to irrepairable kind of things. Like I said, somebody moves away or hides away or whatever, it can really be a difficult situation even say, Mother, you’re wondering about stuff and you know, Dad disappears into the sunset because you just want to pay child support. I mean, I mean…

Jackie Critzer 24:39
That happens to that’s a fair point.

Scott Cardani 24:41
Yeah, all the time. So not blaming one side or the other. We are balanced here. In that sense. We see both issues. So we want to thank you for listening today. We just thought this was an important timely topic and something most people don’t think about so we thought it would be helpful.

Jackie Critzer 24:57
Please let us know if we can answer questions for you from either them The other side of the father’s side when to file for paternity, how to get that done when to file for child support, what you should be expecting if that’s the case and and what the presumptions are under the law and just how to navigate these waters. So be sure to like and subscribe, the podcast and we look forward to being back on track into the new year.

Scott Cardani 25:18
Thank you very much.

What To Do When… Outro 19:37
We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.

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We look forward to helping you in this venture and Good Luck!