Someone wrote to me about paternity suits and the obligations of spouses in subsequent marriages for support. He was nearly forced to hire a lawyer (they refused to speak to him, said they needed to speak to his legal representative).
Why hire a lawyer?
According to the Supreme Court in Haines v. Kramer, citizens have a constitutional right to represent themselves so long as they are mentally competent. The Colin Ferguson case on Long Island raised doubts about this long-held theory.
Unfortunately, theory and practice contradict. In theory Haines requires the court to overlook technical errors committed by laymen and "to conform the pleadings to the proof" as NY Civil Procedure states. That means if you use the wrong procedure or ask for the wrong remedy, the court on its own converts your case to the proper form. Try it!
Actually, it's the other way around. Judges interrupt pro se litigants, confusing them, intimidating them and court clerks actually help lawyers draft documents acceptable to the court.
So it is a good idea to have a lawyer if you can afford one.
What if the case drags on and the lawyer wants more money?
Laymen must learn that it is cheaper to cut losses. It is harder to climb out of a hole a lawyer has dug for you in his ignorance or carelessness than not to fall in in the first place.
Make your retainers as low as possible and operate on a pay as you go basis.
It is your responsibility to learn enough about the law to know generally if the lawyer knows what he is doing and if he is doing it timely. To think you can buy serenity by choosing a lawyer to be your hired gun may be good for a Ted Turner or O.J., but it is lethal for the rest of us.
What if the court begins charging interest?
In theory a court can't just impose interest charges, although in domestic relations cases I have seen judges get away with doing the opposite of what the law requires and even getting sustained by an appeals court.
In New York civil cases interest begins to run when a judgment is entered and the interest is uniform and set by legislation. It is like charges for not paying debts on time. Of course, judges can impose fines for contempt of court and sanctions for "frivilous" litigation.
What rights does a father have?
What rights does he want? An unmarried father, based on another Supreme Court case, Stanley v. Illinois, has the same theoretical right to custody as the mother. But that has nothing to do with practice. He might have visitation rights and some say in crucial decisions in the raising of the child. Does he want these? If he does, he must move to assert his rights quickly or he looses them under the doctrine that "stability" is in the best interest of the child.
But what about paternity tests?
Paternity tests are to determine support obligation -- if a man is the biological father regardless of whether he wants anything to do with the child or not. An illegitimate child has the same rights to the father's support as his legitimate offspring. Otherwise men would be picked up at random off the street and arbitarily made to support children they had not sired. Don't hold your breath. Extremist feminist legal"scholars" like Catherine McKinnon of U of MN law school seriously assert this on the grounds that all men are rapists and all sex in nonconsensual. Women are put in the same catagory as children. "Since men have sex with so many women, what does it really matter which child they are forced to support?"
How will my income affect the outcome if I remarry?
In New York, if an ex-spouse remarries, the combined income of the new marriage becomes the basis for support. It is less likely to work the other way around. There is much to be said for keeping your assets separate and not remarrying even though you have children. The other spouse's assets would be harder to get at, but not impossible.
Values don't seem to matter to some.
Values, what are they? Sermons judges who prefer young girls over the age of consent deliver at the end of the hearing.
What do we have to do to get a Fair deal around here?
I have found that representation by a female attorney can sometimes help and that organization of new wives rather than "old dads" gets more sympathetic treatment in the media. The media is the key to everything. If you can make your case stand out sympathetically, you have a better chance for your "justice" than the lawyer who knows the most law.
Now if the lawyer knows the most judges.....well we don't exactly talk about that, but it known around the local bar to be of some help.
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