As in any legal case it is difficult to know all the details from a question or brief description of what has transpired. What I do know, however, is that whether it's Florida or any other state, you are always allowed representation. Look up legal aid for an atttorney if you cannot afford one; also you can ask for a paternity test. Make sure that the judge is clear on the fact that you insist on the test;
He/she cannot rule until the results are in. Hope this helps. Good luck!

Thank you very much for helping me out with this matter. The man that I was speaking of is my husband. I am his legal rep, but the judge would not permit me into the court room to speak on his behalf, so I have filed a modification order, and would like to contest the order...hopefully at that point the judge will permit me or an attorney into the court room to speak on his behalf.

Thanks Again!

I think the key question was disabled and if I'm not mistaken (Dementia), in any court of law you have to be competent, additionally, disability by law should not be tampered with. Thats almost like saying a person in a comma has to work and pay regardless of his physical condition? Is Cyn 747 really an expert?

It was unclear as to whether the putative father had signed the BC. If, indeed he had, then the judge can certainly rule, as the man has admitted paternity.
You must be a lawyer, admitted to the bar in that state to represent anyone in a court of law, being a wife does not qualify you to represent him. You were free to hire an attorney at any time in the proceedings and the previous proceedings. Without the previous court records to review, there is no way to ascertain why the other cases were dismissed. Evidently, it was a point of law that has now been satisfied.
Being disabled has no bearing whatsoever on the liability for child support, Children of disabled people cannot live on air, they must be supported.

If the father is challenging paternity ( whether he signed the BC or not) It is up to him to motion the court to order a DNA test. If the court finds cause to grant that motion, the costs would be awarded to the father, as he is the one contesting parentage.
Children of disabled parents receive a separate benefit from SS based on the parent's benefit, that has absolutely no effect on the parents benefit income. Some state courts have ruled that the benfit provided by SS satisfies the child support award, and other state courts have imposed an additional amount to equal what the child support would be using the mandated state formula.

My Answer was not to question weather he was the father of the children, but to question competency and disability which renders any american citizen under the american disabilities act. I appreciate your legal expertice, but with out illaberating on my 55 years of prosecution, trial law and supreme court judiciary commitee and an honors graduate at Harvard University, there is a key point that was made that was over looked. Cild support is to be paid by everyone, but circumstances that lend to incapacitority due to a physical disability WILL be taken nto consideration and a motion waived in a case (Depending on his or her physical state) Social security or SS can sufice to support the children or child in question. I have represented these cases along with murder cases, wrongful prosecutorial cases, defense cases etc., I could go on, but my legal career has brought me full circle and am in no way impressed with your credentials. Your still learning the ropes youngman and I will run circles around you in a court of law. I take no sides, but will defend those with merit and innocence. (Not to say this person is , but if he or she is disabled the judiciary will not touch them that I will promise you! But there are other avenues to obtain support for needed child support!

Sincerely,
a real lawyer

If this man was / is truly mentally incapacitated, he would have a legal guardian or conservatorship, and that person would have hired counsel to deal with ALL his legal issues , just not child support.

Every lawyer in this country knows, that you cannot use mental incapacity in a civil case, unless that incapacity is proven in a separate proceeding, and that court declares him unfit to deal with and care for himself and his business. Just becasue social security has determined he is not able to work, doesn't mean he is mentally incapacitated to the level required no tto be responsible for his own acts , etc. Those standards are light years apart. As anyone drawing SSDI with a "non exertional" impairment can explain to you.

Here is the controlling case law from Florida regarding whether a parent recieving Social Security Disability ( for any impairment) 1) should not have to pay child support, and 2) whether the child's SSDI benefit substitutes for "regular"child support.

Kirwan v. Kirwan, 606 So. 2d 771 (Fla. 5th DCA 1992). In Kirwan, the parties were divorced in 1988, and the father was ordered to pay $345 per month in child support. See id. In February 1991, the mother filed for contempt and alleged that the father had failed to pay support for the previous six months. The father responded by stating that he had become disabled and requested that the child support obligation be abated, never informing the mother or the trial court that in September 1990, he had begun to receive social security benefits of $1058 per month, none of which was forwarded to the child.
About a year later, the father began receiving benefits for the minor child as well, but again, did not forward them to the mother. At the time of the contempt hearing, the mother was receiving $529 per month directly from Social Security.

The trial court in Kirwan found the father in arrears $9,082.25 for the period from November 1989 to September 1991.
. The court refused to allow the excess between the $529 received from Social Security and the $345 court-ordered child support amount to be applied toward the arrearages. Instead, the court determined that all of the money paid by Social Security belonged to the child and that even if there was a windfall, it should inure to the benefit of the child and not the father.

In Kirwan, the trial court expressly rejected the father’s argument that the social security payments constituted "substitute income" which the father could use as he pleased.

The trial court found that such payments which the father received on behalf of the minor child belonged to the child, not the father, and because the father failed to make support payments during the time the arrearages accrued, the child was entitled to the windfall.

Although the district court recognized that this could be a harsh result because the father was disabled during the entire time the arrearages accrued, it affirmed the trial court's order.

In Kirwan, the issue was whether social security benefits paid directly to a minor child in excess of the disabled father’s support obligation may be used to reduce the father’s established child support arrearage.

The issue in this case is whether social security benefits paid directly to the child, because of the child's entitlement from the father's early retirement, may be used to reduce all of the father's established child support arrearages. We conclude that it cannot.

Under the United States Code, a minor child is entitled to a benefit if the child's mother or father retires. See 42 U.S.C. ? 402(d) (1998). This benefit is separate from the parents' retirement benefit and ends when the child turns eighteen. It is important to note that the minor child was entitled to the same social security benefit if the parents had remained married and the father chose to take early retirement. The father argues that he should receive credit toward the arrearages because the social security benefits act as substitute income.

NOTE:
This is not a novel theory and the courts have addressed the issue of when to consider social security benefits when calculating the amount of child support under the guidelines. See State, Dep't of Health & Rehabilitative Servs. v. Linden, 584 So. 2d 207, 209 (Fla. 1st DCA 1991) (father entitled to credit against child support arrearages for social security benefits received by child at time of divorce as result of father's disability, only if trial judge who initially established child support did not take those benefits into consideration); Williams v. Williams, 560 So. 2d 308, 310 (Fla. 1st DCA 1990) (trial court erred by not including husband's social security benefits as part of income for child support at time of dissolution).

However, these cases allowed the social security benefits to be added to the parents' income only at the initial determination or on modification. Kirwan did not allow the benefits to be used as a credit to arrearages when the parent failed to ask for modification and just stopped paying, reasoning that if there is a windfall then the child should be the beneficiary of the windfall to make up for all the time that the child went without support. See Kirwan, 606 So. 2d at 772.

As Kirwan noted, after researching other case law from states that have not allowed these benefits to be used to reduce arrearages, "permitting support arrearages to be reduced in this fashion fails to recognize the importance of timely monthly support payments which are necessary to meet the current needs of the child."


This has been the (case) law in Fl since 1998.; as most if not all , other states have similar rulings

I am so sorry for not including more info with my question... I am really confused now...I am not only the legal wife of this man, but I am also his legal guardian, and legal rep for SSDI benefits/payments.

I was told per the SS office that a separate check, (as in addition too) his reg monthly benefit amount would be "cut" for any children at the VERY worst...and that would only be IF a court orders it, and it is proven to be his child, however that did not happen...they took $360 out of his SSDI check ASAP and he now owes $8,202.00 in past payments.

He did NOT sign any type of birth CERT, he was never married to this woman, nor was he ever in any type of exclusive relationship with the mother of the said child. He has had no contact with the said child for 10 years...the mother is the one that keeps calling and coming onto our property, and when she does call or come over, the conversation has NOTHING to do with the said child ... only about her and my husband....

The mother has taken my husband to court 3 times prior to this new child support order of 10/30/09, (2001, 2007, 2008). Each time, all 3 of the cases were dismissed and closed due to the fact the mother would not consent to a DNA test...So I have no idea as to how this could have happened again...I guess the past 3 attempts were not documented or asked to be "with Predjudice"?...

My husband has mid to late stages of Alzheimer's and has been deemed by the courts (& by more than one judge) to be incomp prior to this support order...We had legal aid, however, she could not make it to the court hearing, and told me, as his legal rep to ask for a continuance until a date as to where she could be there, but the judge would not permit me to speak...

And just to be on the safe side, I filed the motition as a NON attn...even though I am his leg rep

I am so sorry for not including more info with my question... I am really confused now...I am not only the legal wife of this man, but I am also his legal guardian, and legal rep for SSDI benefits/payments.

I was told per the SS office that a separate check, (as in addition too) his reg monthly benefit amount would be "cut" for any children at the VERY worst...and that would only be IF a court orders it, and it is proven to be his child...

He did NOT sign any type of birth CERT, he was never married to this woman, nor was he ever in any type of exclusive relationship with the mother of the said child. He has had no contact with the said child...the mother is the one that keeps calling and coming onto our property. When she does call or come over, the conversation has NOTHING to do with the said child ... only about her and my husband....The mother has taken my husband to court 3 times prior to this new child support order, and each time all 3 of the cases have been dismissed and closed due to the fact the mother would not consent to a DNA test...So I have no idea as to how this could have happened again...I guess the past 3 attempts were not documented or asked to be "with Predjudice"?...My husband has mid to late stages of Alzheimer's and has been deemed by the courts to be income prior to this order...We had legal aid, however, she could not make it to the court hearing, and told me, as his legal rep to ask for a continuance until a date as to where she could be there, but the judge would not permit me to speak...

I cannot stress this enough: you are not an attoney and only attorney can file motions, and argue at the bar. (represent someone in court.)

A paternity case could NEVER be dismissed with prejudice against the mother, unless the DNA proved he was not the father.

If the child is his, why do you care if the child gets SSDI from his benefits? The benefits do nothing, no change whatsoever in what his benefits.

If he has not other income or property, then that will factor in to the calculation for child support; just as the florida courts did in the above controlling case

Bottom line: No one is suggesting that anyone not pay child support, my concern is to ensure that both the disabiled be represented to accommodate both his disability and ability to pay and at the same time pay his child support to satisfy all outcomes. i am not one to look at any issue on one side of the spectrum. Courts today DO NOT look at the families best interests (Although on paper it looks and sounds good). I speak on behave of those persons that have paid child support and due to todays economic times, it's hard to get a job even at a McDonalds. My efforts are to maintain both parents in a child or childrens lives. If there are unforseen circumstances that a non-custodial parent loses a job, the courts will work with the individual (Disabaled or not), We live in a world of chaosand too much legal mumbo jumbo, I'm old , but i still have some wits about myself. I do not like the idea of sticking it to people that are at least trying to pay child support, these days and todays job market it's hard and I take my hat off to those in th legal forum assist everyone and not always turn to non-custodial parent (Trying to pay into a criminal).

You are dealing in hypotheticals, no one said not to pay child support , nor get out of paying child support, you are an ambulance chaser. The law is set forth to protect the child. Your explainations are geared for damned the disabled. Anyone disabled substantiated by legal authority will not condemn nor take every cent a person has made. You are not a lawyer or not a very good one. No one mentioned anyone acting as their on lawyer nor acting on theier own behave in a court of law, My concern is the degredation and impoveraging some one that has been paying child support and your attitude of damn his disability -take all he's got. You are a disgrace to the profession. I'm not a lawyer? Let's see, any one can recite case law that doesn't make it fact nor applicable to an individual case presented in court, they are guide lines to determine evidentiary facts of a case and should be taken into consideration durig court proceedings. i tell you what, I will represent this man Pro bono and would love to see you face after I deliver a product you need to learn from. I can recite case law all day, but if you can handle a case, individually, you faall under the same old same old status quo. People that throw there creditial all over the place as if they are Gods gift to law, are the ones to watch out for , bnecausse they are money chasers. I'd do this case for free, to treach you a lesson.

Oh, and Florida has one of the worst child support laws in the nation, as documented in the legal community. 60 minutes, judge Judy, case laws . This is a ambulance chasing state and they do not look out for the childs fellware although we should. If a man is unable to work, under the American disabilities act - find him work. No one advised nor told this woman /lady to represent her husband in a court of law. i cited that there are avenues that she can take to resolve her issue and not take the advise of anyone looking to profit off anyone disabled. I'm not a lawyer? Haha i don't need jargan to get by point across although I could as a discipline, I'll leave you be , but please give our profession the courtesy that we are here to help the disenfranchised and not line our pockets. Now i can oly hope he is truly disabled . I wonder what terry shivo's case (If she owed child support would have done for your theory? you're funny - my offer still stands......................See you in court if you game, I've got the money - do you?

Oh and you aswered your questionj earlier when yu stated:

Further, you are not a real lawyer Kay9 , that is evident from your writings and what you think is important in this case. As a matter of fact, from the writing syle, and disjointed sentences, etc. looks very familiar...and if you were really a lawyer, you would know that the mentally and or physically disabled being liable for child support is long settled black letter law. motion of a ( Continuation to determine competence in a court of law if mentally capacity disabled) this is where the court appoints a guardianship,


EDIT: and if this man was / is truly mentally incapacitated, he would have a legal guardian or conservatorship, and that person would have hired counsel to deal with ALL his legal issues , just not child support. (If Impoverished can afford an attorney the state provides assistance in these matters)

Every lawyer in this country knows, that you cannot use mental incapacity in a civil case, unless that incapacity is proven in a separate proceeding, and that court declares him unfit to deal with and care for himself and his business. Just becasue social security has determined he is not able to work, doesn't mean he is mentally incapacitated to the level required no tto be responsible for his own acts , etc. Those standards are light years apart. As anyone drawing SSDI with a "non exertional" impairment can explain to you.(Disability was never stated to be used as an excuse to waver paying disability, but if the disabiled non-custodial parent is the only one making money or had a job, does this mean you send him to jail? come on....? SSDI is not a means to an end, i stated that there are other avenues to obtain work for the disabled person to pay for his child support and not drag him through the mud. Are we cave men? You sound has if you could careless about someone disabled (Just a guess) , buit the ACLU and the American disabilities Act might have you for breakfast. Try to be a little more empathic for all concerned.

I cannot thank you both enough for helping be with this matter, as I am not an attorney by no means. I am still so very confused as to why or how something like this could happen. To help clear up all of my previous postings here are a few more details of this particular case:

A) No, I am not a lawyer. The forms, or Motions that I filled out were purchased at the court house, (in Daytona Beach Fl. In the law library). The clerk and forms stated, that I or some one else could fill out a motion...Just as long as I included a statement that I was NOT an attorney, but a person only helping my husband fill the motion out, (I had to put my name, address, etc...on each page. The courts are well aware that I helped my husband fill the motions out on his behalf )...I "assumed" that this is legal,due to the fact the court clerk advised me to do so & we got the forms from the court house...

B) I was appointed as my husbands guardian, at the cost of $200 from an attorney who had handled a prior case of his, (nothing to do with the support case). The reason being, the court and at least 2 judges stated that he was incompetent to act on his own behalf for any matters, (legal, medical treatment, etc.)

C) I know that my husband did not sign a birth CERT, due to the fact I was with him when the said child was born, and my husband's mother had asked to see the original birt CERT, and she "claims" that it was not her son, or my husband's signature. I had asked the courts for a copy, along with asking the health dep for a copy of the birth CERT, but they stated that it would cost me "approx" $125.00, to which we do not have.

D) In the prior support cases, we had an "advisor" who is an attorney, tell us as how to answer the summon(s). He told us to ask for a DNA test each time, ( he is a child support attn, but a friend of the family and has/is doing my husband's brother;s case, so he could not take this case, or he stated that he couldnt because he knew we could not pay him is my guess..)...However, the birth mother refuses to take any blood or dna tests, and that is where I am most confused...why wouldn't the courts make her take a DNA test if she wants to claim this child as my husbands?

E) I am also not stating that my husband should NOT have to pay support IF the child is scientifically proven to be his...I am stating that some sort of scientific method should be enforced before this woman can just get part of his ssdi check...and this is yet one more confusing issue...I have been told by 2 attorneys and the ssdi office that a SEPARATE CHECK, will be issued to the said child if it is proven to be my husbands child, but each month, (since Oct 30, 2009) $360.00 has been taken OUT OF HIS SSDI CHECK...there has been no additional check issued to the said child. The money is directly taken out of his monthly checks...and his checks are all we are living on, (he gets $1,486.00 per month, but now gets only $1,1126.00 per month, plus owes $8,202.00 in back pay with in one year?)

F) All I was asking for at the hearing, was to speak as a witness...to convey what legal aid had asked me to say..."please grant a continuance until a time as to where we would have legal aid to speak on his behalf"...I was not trying to play attorney.

G) (Quote from SRD).."If the child is his, why do you care if the child gets SSDI from his benefits? The benefits do nothing, no change whatsoever in what he recieves." ...

(My Answer)...Once again, this is where I am confused...Because, the benefits DO change matters...The child support order of $360 per month IS coming out of my husband's only income, leaving us with only $1126.00 per month now....If there were to be an additional check made to the said child, (one to which would NOT effect my husband's monthly check amount, and after it has been proven to be his child)...Then, NO, I would not care what so ever if the said child gets an additional check to my husbands SSDI check, but as it stands right now, the $360 per month is being taken away from my husbands check amount each month...(and, I do understand that $360.00 might not sound like a lot of money to most people, but it's ALL we have to pay our bills ... My husband has mid to late stages of Alzheimer's, Bipolar, Sundowners, Paranoid Delusions, Anxiety & Sleep Disorder, and Hemochromotois, so I must watch him, and it's not only that, but its due to the fact that I WANT to spend all of the time that he has with him, as his father is in the last stages of Alzheimer's. I want to spend every minute that I have with my husband before he reaches that stage...)

H) My husband has no other income or property, and I am on unemployment due to the company that I had worked for, over 7 years... closed down, "due to the economy."

I) I agree, that the legal aid rep should have her head examined, but she was appointed to us by SSDI, and since we have no money for an attorney, that's what we had to accept...

(Quote from SRD)..."i tell you what, I will represent this man Pro bono"
(Quote from Kay9)..."my offer still stands.........See you in court if you game, I've got the money - do you?"

(From Me)...I would LOVE, and be forever grateful & in your debt, if either of you could please help us with this matter...We have no money to pay you, but ANY type of help that either of you can do for us, or offer would be greatly appreciated...

You have misquoted me; I NEVER said I would "represent this man pro bono" anywhere in my posts.

I guess that you are a real attorney, and by NO means am I suggesting that Kay9 is NOT a real attorney, as you have done; however, she "appears" to be a bit more compassionate in her replies...For what ever reason(s) you "appear" (to me, and to me ONLY) to be a bit touchy, or defensive when it comes to this subject matter.

I do see the post as to where Kay 9 had graciously offered help, and not yourself....Thank you for pointing that out to me. Thank you for your time.

Take Care & Good Luck in Your Selected Profession.

I think it is obvious to everyone that kay9 and tammyknot are one in the same person
and I am indeed compassionate especially to the children of deadbeat parents

Wow, my bad...I didn't see that one coming. I hope that you were speaking morphologically when you stated that we were..."one in the same person"... And, I do hope that you are sincere in your statement concerning being compassionate...No one was speaking of "DEADBEAT parents"...How in the world did you read that into any of my questions? My question was HOW could something like this happen, in ANY State, to anyone, if there was NO acknowledgment or scientific proof that the said child is my husband's child? ...And, How can they take money out of my husband's check, when I was told a separate check should be issued in addition too his check, NOT FROM HIS check, IF indeed the said child is his?... I am very sorry, I will back off, as you must have had a bad week...You should therefore be much more open, or understanding of how I feel at this time.

My offer was to face you off in a court of law! Read my post in www.Lawyers.,com concerning child support and the disabled. I DO NOT LIKE ANYONE TAKING ADVANTAGE OF THEM. I AM A DISABLED LAWYER and you will not recite any law to me, YOU KNOW NOTHING!

Thank you Kay9, as you appear to have far more insite, wisdom, and compassiom pertaining to the disabled population Thank you ever so much for being such a kind and caring person, we need more people like you!

Bless You,
Tammie

And for some reason when u post on here, it misspells our words, I have noticed...because, when I make a post, my words are not misspelled, yet when they are posted some of the time my posts have misspelling? strange

Mame the clerk of the court is directing you in the right direction.You may also look into legal aid to assist you , due to your financial difficulties. Please refer to the Americans for disabilities act and your local social services. If your husband was a veteran, they can also direct and help you aswell. I'm very sure the gentleman was genuinely trying to help, but look into every avenue (Especially free), when you are living on a fixed income. I will pray for you and your husband. The child support and protection laws are there to protect children, but on the otherside, a lot of people take advantage of it's intent and purpose. i don't use legal jargon when I speak to people, it's almost like a street fight when i want to get a point across, but we should all try to help one another in need or at least point them in the right direction. Legal Aid, Clerk of the court, research free consultation to get directions, you'll be fine, stay in prayer!

Signed
Kay9
Not a lawyer :)

Thank you for being human! We all need more people like u!