This the second installment in our Nate, Kate and Tate story.  When we last left our star-crossed teenagers, neither parent had pushed the issue of a paternity test because, at nine months,  it appeared that baby Tate looked just like Nate.  

Tate is now 2 years old and he is a happy baby.  He is progressing normally and, aside from allergies, he is healthy.   Tate is covered by the state healthcare for children and the medication he needs costs Kate about $50 each month. 

Kate remains living at home with her parents and is pursuing a Bachelor’s degree in nursing.  She commutes one hour each way to the university three days per week.  Until now, she’s been able to manage childcare by placing Tate in a Mother’s Morning Out at her local church.  When she leaves for school, her mom takes Tate to the church at 9 a.m.  Kate’s class lets out at noon, so she rushes home to pick up Tate at 1 p.m.  The church offers this program only two days per week.  On the other day she has class, Kate’s grandmother watches Tate, but her Grandmother is moving to a retirement community in Florida at the end of this semester.  To make matters worse, her class schedule next semester is three full days per week.  The least expensive day care in her town is $700 per month, a steep jump from the $150 per month she was spending in the mother’s morning out program. 

Nate is still living in the next town working for $15 per hour as a mechanic.   Nate consistently visits every other week.  He picks up Tate, takes him to McDonald’s and then to the park.  Tate loves to see his Dad and is sad when he has to go home.  Kate has encouraged Nate to take Tate for overnight weekend visits, but Nate says his bachelor pad is no place for a little boy.  When Nate comes to visit, he always has a $50 or $100 to give Kate.  He never asks for a receipt and Kate never thinks to give him one. 

As you can tell, Nate and Kate are no longer dating and they see each other only when Nate comes to see Tate, but they have remained amicable.  They are both seeing other people, but not seriously.

When Nate arrives one Saturday afternoon, he is driving a brand new 2012 Lava Red Mustang.   When Kate recovers from the shock, she flies off the handle yelling “how much did you pay for that?”  Without waiting for a response, she continues:  “ You waltz up here every other week and hand me a $50 bill to pay for Tate’s expenses.  Do you have any idea how much it costs to raise our son? Do you have any idea that your sad $100 each month does not even cover his day care when I am at school?  Did you know that his medication alone costs $50 each month?   You don’t even take him overnight so that you would have to feed him three square meals on the weekend.  When you pick him up, I have a diaper bag packed for you. You don’t even pay for the diapers!!!”   Kate storms back into the house.  Tate hops into the backseat of the Mustang, eager to spend the day with Dad.  

A few days later, Nate receives this email from Kate:

Nate, I am sorry that I lost it on Saturday. I should have never acted like that in front of Tate. But I am so frustrated by your lack of financial support. And you don’t want to take your son for the entire weekend!!!  Do you know how many dads would like to have more time with their kids???

One of my friends has a daughter Tate’s age and her daughter’s father gives her about $500 per month in child support, he makes a lot less than you and he’s drives a beat up old Buick, not a brand new mustang!!!!   Not only that, but he picks up his daughter on Saturday morning and returns her late Sunday afternoon.  My friend has the weekend to study and work at her part time job. I would love to have two days off every other week so that I can get to my studies!! 

Tate is going to have to be in a regular day care starting next semester.   I have looked around and the best price is $700 per month at Choo-Choo Train Academy.    Starting next month, I need you to start giving me $500 per month.  If you don’t, I am going to have to call child support enforcement or, whatever it’s called, and have them make you pay it.  Ball is in your court!!!

-Kate

Nate feels terrible. He had no idea.  Two weeks later, when Nate comes to pick up Tate, he brings Kate $250 in cash.  Kate thanks him and hands him an invoice from “Little Bachs”.  “What is this?” Nate asks. Kate explains that she has enrolled Tate in a music class.   The cost is $100 per month and she expects him to pay half.  Nate tells her he doesn’t have the money today but that he will bring it next time he visits.  She thanks him again and tells him Tate is really enjoying the class. 

Later that night, Nate starts to think:  is it reasonable for a 2 year old to have music lessons?  Can he even understand the music at that age?  He decides he is not going to pay Kate the extra.  If she wants to enroll him, that’s fine but he is not paying for it.   He starts to think that he is going to be nickeled and dimed for every activity and would rather hand over money once per month to Kate and be done with it.  

Today, we want to talk about a few things we saw “wrong” with Nate and Kate’s choices  to date.

First, the payments Nate has been making have all been in cash.  We always ask clients make support payments by personal check or money order. If you must pay cash, then always ask for a receipt. We are even seeing clients who use PayPal to make their payments.  Things will get sticky for Nate in the coming posts because he has made cash payments and has no record of what he has paid Kate.  

The second issue is the child support amount.   Child support is set by the income of both parents.  Income includes rental income or income that you are receiving from a trust as well as income that you earn as part of your job.  Income is a bit more difficult to calculate when one parent is self-employed, but Georgia law provides guidance on those calculations.  Many people believe that the court is going to take into account your car payment or your mortgage payment.  Expenses are not considered in calculating child support—just income. 

Other considerations in calculating child support include expenses for the child such as day care expenses and health insurance costs.   Courts also have the discretion to allow other child-rearing expenses into the calculation, like extracurricular activities.  A court has the discretion to grant the paying parent a deviation for that additional expense.    In Tate’s case, he is involved in an extra-curricular activity: music class.  Normally, parents equally split the costs of uncovered medical expenses.

So what’s the glaring error with Kate’s demand for $500 support?  It is not based on income.  It is based purely on a number that her friend’s child’s father is paying.  It does not take into account either parent’s income or Tate’s particular needs and with the addition of “Little Bachs,” Nate has no idea what he’ll be paying each month since additional activities could arise at any time. 

When attorneys calculate child support, we use a worksheet which allows us to include the cost of extra-curricular activities, private school tuition, and many other expenses in the child support amount.  This makes it easier for the non-custodial parent to provide one check each month enabling them to contribute to all the child’s expenses.  It reduces confusion and room for conflict while making sure the children can be adequately cared for.

Lastly, this agreement between Kate and Nate is not in an order.   If Nate stops paying, she can’t take him to child support enforcement to garnish his wages.  If Kate decides she wants more money, she can hold Nate “hostage” by threatening to take him to court. 

 Stop by next week for more of the continuing Saga of Nate, Kate and Tate.

 

 

Posted
AuthorAdriana Torriente

Yesterday, we began our saga of our fictional new parents Kate and Nate.   But last week, the Georgia Court of Appeals issued a decision on a real life Kate and Nate.  We don’t normally post on Fridays, but we thought the new appellate opinion paralleled some of the concerns expressed by Nate in yesterday’s post. 

In yesterday’s blog entry, Nate felt uncomfortable signing an Acknowledgement of Paternity because his friends indicated to him that Kate may  not have been completely faithful during the relationship and in particular during the time of Tate’s conception.   In last weeks’ opinion in Venable v. Parker, the Father had signed the Paternity Acknowledgement (PA), had entered into a settlement agreement establishing paternity and child support, and had consented to an income deduction order to have the child support deducted from his wages. The trial court entered a final order incorporating the parties’ settlement agreement.    After all that, the Father asked the court to set aside the Final Order establishing Paternity because of fraud and misrepresentation.  He testified that he had filed his motion to set aside the order because he had found out that the Mother had various sexual partners during the time she conceived.  He also provided contradictory testimony that he knew she had other sexual partners and was doubtful when he signed the Paternity Acknowledgement. 

The trial court denied his motion to set aside stating that he had not met his burden in disestablishing paternity but ordered the father and the child to submit to a DNA test. We’ll discuss the disestablishment of paternity in a later blog post.   In their opinion, the appellate court said that the trial court could not require genetic testing when it denied the Father’s motion to set aside. 

So what can we learn from our real life Nate?  In our fictional saga, Nate had doubts and he acted on those doubts.  It was probably uncomfortable for him to voice his wishes to Kate.  He probably felt like a real jerk.  Kate surely thinks he is a jerk. When he decided not to sign, he probably wondered about whether he was going to leave a small baby in a dependent state and fatherless.  Maybe his parents or Kate’s parents were disappointed with his decision.  But we think that Nate made the right decision.  The cost of a DNA test is inconsequential compared to having to appeal a case such as Venable.   Not to mention, the peace of mind that comes from a DNA test-- no lingering questions such as “does he look like me?”

The real life Nate, the Father in Venable, had doubts and failed to act on those doubts.  He went with the flow and then later it appears that he regrets those choices.  He may have thought he was doing the honorable thing by ensuring that the child had a father.  Maybe he thought he could easily get out of the choices he made.    But the law tells us “public policy is not advanced by the disestablishment of legitimacy and paternity.” See In the Interest of T. W., 288 Ga. App. 386, 389.   Interestingly, he also testified that the Mother had threatened to tell his wife about the affair and the child if he did not sign the PA.   It seems that our real life Nate would have been in less legal turmoil had he followed one simple rule: keep it zipped.

If you would like to read the opinion in Venable v. Parker, you can find it on Lexis’ free service here.  The Lexis citation is 2011 Ga. App. LEXIS 98. 



Posted
AuthorAdriana Torriente

Meet Kate and Nate.  They are graduating from high school in May and they’ve been dating since sophomore year when they were in the same biology class.   They both plan to attend a local community college next year and live with their parents until they can save enough money to transfer to Georgia State.   Kate took a pregnancy test last week and she found out she’s pregnant.  Both Kate and Nate are excited, but worried about the future.  

Over the next nine months, their relationship stays relatively strong considering the pressures of having a child.  They make a decision not to marry because they do not believe they are ready for that commitment.    Nate goes to all the pre-natal appointments with Kate and, when the big day arrives, he is at the hospital for Tate’s birth.

As an attorney, one of the things we are trained to do is think through all the possible scenarios, both good and bad, that can flow from any act.  So in today’s post, we begin our saga involving Kate and Nate.    Kate and Nate are fictional characters based loosely on our previous experiences in legitimation and paternity cases and from articles in the media.   Nothing in this post should be construed as legal advice and, although you may believe that your case has many of the same facts as Nate and Kate’s story, you should consult an attorney because all cases are very fact specific. 

 

At the Hospital 

While at the hospital, the staff brings by some documents for the new parents to sign.  One document has the title of “Paternity Acknowledgement” and at the bottom there is a section called “Acknowledgment of Legitimation”.    Should Kate and Nate sign this document?

Let’s take this document one section at a time. The Paternity section establishes that Nate is the biological father.  Because Kate and Nate were not married when they conceived the child nor were they married when Tate was born, Nate is only the biological father and not the legal father.  If Nate thinks that Kate may have been untrue, he should not sign. Or if Kate knows that she had relations with another man during the time she conceived Tate, she should be truthful with Nate and consider having both Nate and Tate take a DNA test to establish paternity.  

The Legitimation section creates a legal bond between the father and the child.  They can inherit from one another, Tate can receive Social Security benefits from Nate’s account should Nate pass away, and they are entitled to other legal rights.  Women who are currently in an abusive relationship with the father of the child should seriously consider not signing this document until they have consulted with an attorney.  A child can be legitimated with this same form within one year of the child’s birth or by court order at a later time.  The days after birth are very emotional and some people may not be suited to making life long decisions at this time.   Legitimation does not grant the father any type of custodial rights or visitation with the child, but it is the first step in establishing those rights. 

Nate and Kate decide not to sign the Paternity Section or the Legitimation Section.  Nate’s friends have told him that they think that Kate was unfaithful.   Although he doesn’t believe she was unfaithful, he tells Kate what his friends think.  Kate is very hurt and knows that she will feel better once the paternity test is complete.

Kate returns home with Tate to live with her parents.  Nate visits almost every day during the first few weeks.  After a month, he starts a new job in the neighboring town and cannot come see Tate every day.  But he is faithfully coming by every Saturday to spend a few hours with his son.  Kate teaches Nate how to feed Tate and how to change his diaper and after a few months, Nate takes Tate every other weekend overnight.  Nate does not make a lot of money and he is helping out his parents with their expenses.  He gives Kate fifty bucks cash every week for diapers and other baby needs.  Nine months go by and it is pretty clear that Tate looks like Nate, so everyone forgets about the paternity test. 

Visit us next week as we explore the misadventures of these new parents.

Note: Torriente Marum, LLC is a Georgia corporporation and the attorneys in this office are only licensed to practice law in Georgia.



Posted
AuthorAdriana Torriente