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A Legal Guide
Ron is admitted to the NY and NJ Bar. He is a member of Federation of Christian Ministries and CORPUS. He is a graduate of Fordham Law School.
A mother or expectant mother of the child of a "celibate" Catholic clergyman has to face many issues. The following guide is primarily about legal rights and responsibilities. A good preparation for any future litigation is for the woman to face honestly how the child came to be. Who is responsible and who is irresponsible? An old-fashioned examination of conscience may be helpful: Did the woman seduce the man to force him to develop a love and concern that was never there and perhaps never will be? Did the man pretend to have a love and concern for the woman (or her child) that he does not have? How did two sexually active adults, who supposedly were aware of the consequences of their actions, fail to use contraception?
This is not the time or place to play a useless blame game. However, a critical facing of unpleasant facts may help everyone concerned. Some clear thinking will enable the mother or expectant mother who is having the child to be more focused on her responsibility in the future. This will also clarify what she can realistically expect of others. Legal rights are founded on a factual basis.
The following is done in a question-and-answer format. The format would be similar to a woman coming to an attorney for legal advice and what general advice may be offered to her.
1. What do I do with the child?
If you are bearing a child, you can abort, put the child up for adoption, or keep the child. If the child is born, you may put the child up for adoption or keep the child. You have a legal right to do any of these. Most likely, you will find abortion morally wrong, although in many cases it will be legally permitted. If you seek advice from the Catholic clergy, you will unfortunately discover that some clergy and/or their representatives may hint at the abortion "solution" even though they vigorously preach against it in other situations. (Clergy find it very easy to tell non-clergy what the moral requirement is; they are not always so concise with their own). You may place the child up for adoption. If you have not named the father of the child, he has no legal standing to prevent the adoption. If you do name the father of the child (e.g., in the original birth certificate,) then you have created a legal right for the father to have a say in whether or not a child is adopted. If you name the father, and you choose to raise the child yourself, you have a legal obligation to finance the child's upbringing and education. A portion of this legal obligation falls upon the named father. You may require litigation or the threat of litigation to get the father to assume his portion fo the financial obligation.
2. What are the legal rights of my child?
A child has a moral right to know who his parents are and to expect them to raise the child with appropriate emotional, financial and educational support. In the best situation, a child knows who both his parents are and lives with them. In the real world, a child of an unmarried woman who keeps a child fathered by a "celibate" Catholic clergyman will miss out on much of what is due. in some cases, the mother may be under a Settlement Agreement or Court Order not to tell the child who the father is. If she does tell the child, there may be a financial loss to the mother (See #14 below). If the father, like Bishop Casey of Ireland, does not want the child to meet him, there will be a loss- a loss of what every child has a moral right to expect. Unfortunately, this moral right may not be a legal right (in this context a legal right means one enforceable by the Court). Courts can assure that the child have some financial support; but in such a sad situation, the mother alone will have to provide whatever parental emotional and educational support she is able to, but the father will not have any legal obligation to be part of the child's life unless he admits paternity and seeks to have a custodial relationship. At the present time, the institutional Catholic Church discourages any showing of parental responsibility on the part of the" celibate" officials who have fathered children.
3. How Helpful is the Legal Advice in this Article?
This guide is for general information. There are 50 States in America, and each has somewhat different statutes and case law on child support and on the rights of birth parents who are not married to one another. Most likely there is a family court in your county which specializes in child support cases.
4. What about hiring a lawyer?
You are free to act pro se (i.e., with no lawyer) and most family court clerks will assist you with some information and with forms. (Be advised that some jurisdictions have strict laws preventing non-lawyers from giving legal advice). You can also secure an attorney. it is best to secure one who is familiar with family court matters and who has no professional relationship with the parish, religious order or diocese of the baby's father. It is perfectly permissible to ask an attorney if there is any conflict of interest between representing you and the person or institution against which you have a legal claim. (Be wary of attorneys who represent the Catholic clergy who offer to tell you what legal rights you and your child have; they are being paid to help the institution and to save it as much money and scandal as possible).
If you secure an attorney on your own, you may be asked to sign a retainer agreement. This will either be for a set hourly rate (or set total fee) or require you to pay a percentage of what you win (the contingency fee). Usually you are also expected to pay court costs and expenses involved with your case. Get an estimate from the lawyer of what it will cost you, and when the lawyer will want payment. You may also want to negotiate that there is a ceiling, and if the fees go over that amount, you must give approval before more time an money is spent on your case. If you believe you are being overcharged, or if an attorney suggests that sexual favors can replace a money payment, contact the local county bar association.
5. What is a plaintiff?
In legal terms the plaintiff is the person who has been wronged an has a right to go to court and to sue for financial relief. A plaintiff can be the mother or the child or both.
6. What is a defendant?
In legal terms, the defendant is the one who causes the harm and owes a financial debt to the plaintiff. The father of the child is the defendant if he has "abandoned" his parental obligation to the child. If the father does not have the financial resources to assist the child and the mother, the plaintiff may have a legal claim against an official Church institution. If the father is a parish priest, then the parish and/or diocese may be named as a co-defendant. If the father of the child belongs to a religious order, then that order may be named as a co-defendant. This is based on a legal theory called respondent superior, which means that the institutional Church (since it supposedly controls the activities of its official members) has a financial responsibility for the harm these officials do.
7. What is the relationship between civil and canon law?
Basically, the father of your child has violated a tenet of the Church's canon law by having sexual relations with a woman. Supposedly, the Church is to discipline official members who violate the canon, and theoretically protect that faithful from the official wrongdoing. This is the basis on which a civil court can rule on a church matter: a civil wrong has been committed, and the Church has not remedied that wrong. (It's more complicated that that, but you are not interested in technical aspects of Church-State relations). Your basic concern is that you have a legal right to go to a civil court because no Church court is helping you.
There is no point in using any canonical procedure to seek help. No matter what the canons say in theory, in practice canonical courts and/or canonical inquiries have as their sole purpose the protection of the Church from financial responsibility, and to keep embarrassing facts out of the media. Canonical courts and/or inquiries are not set up to help women who are bearing the children of Catholic clergy.
8. Does anyone else have a legal interest in the litigation?
If you are married to someone else, the law presupposes, that your child is also your husband's. This is a presumption which must be overcome by evidence to the contrary. This entails revealing the fact that you have had sexual relations with another man. This admission may be used by your husband to avoid financial responsibility for the clergyman's child, and can also be used to seek custody of your other children on the grounds of being an "unfit mother." You will then have the burden of proving to the Court's satisfaction that your sexual conduct did not and does not interfere with your role as a mother. Courts today are more tolerant of extramarital sexual activity, especially if the wife is living separate and apart from her husband.
9. What is legal evidence of who the birth father is?
Naming the child's father on the birth certificate is considered important evidence. The father's admission of paternity is also adequate evidence. If the father contests paternity, the Court can order a blood test. Today, a blood test proves paternity beyond a reasonable doubt (the highest standard of evidence for a Court). Such tests are 99.9% accurate in determining paternity. Once paternity is established, a Court can then rule that the father is financially responsible for the child.
10. What do I do if I need money right away?
You can seek financial support from the father or the "responsible" Church institution. If no help is forthcoming, or if the help is inadequate for your needs, you can ask the Court (technically called "motioning the Court") for financial support prior to a Trial. Usually you must present some documents which provide information about your financial resources. The father must do the same. If the father refuses to provide the information, you can subpoena the information, and he must provide it under penalty of contempt of Court. (In some States, a contempt order may mean incarceration.)
11. Will the defendant's) use lawyers?
Very much so. Their real role is to verbally embarrass you, and to keep your financial demands low. If you have the stamina to oppose this, do it pro se. If it is too much to take, get an attorney to assist you in securing your legal rights and those of the child.
12. What is a Settlement Offer?
It is an Agreement not to go to Trial. The father and the institutional Church want secrecy, and a promise from you not to continue the suit or to go to the media. The mother normally gets a payment plan in exchange for her promise to abide by the Settlement. such a payment plan should include regular money payments until the child is "emancipated" (financially independent). There should be a clause permitting you to return to Court to seek a modification, if anyone's financial situation undergoes a dramatic change (loss of job, father leaves the priesthood and secures a good paying secular job).
13. What is a Release?
It is a legal document which prevents the plaintiff from suing the defendant's) again in Court on the same matter. A Release should always be accompanied by a financial settlement and should be review by an attorney before being signed by the mother. There should be no duress or harassment forcing the woman to sign the document.
14. What is a Trial?
Both parties, usually represented by counsel, appear before a judge (in rare cases, before a judge and jury and tell their story. An absent father may be represented by an attorney. The evidence determine whether or not the father is the birth parent. The court considers the financial resources of both parties, the needs of the child and/or children, and the normal standard of living which they had. A Court Order or Decree normally incorporates the financial settlement and/or Release.
The questions which come up in the Trial can be very intrusive into your personal sex life, and your parenting skills and employment skills.
15. Do I go to the media?
If you find that you negotiations with Church officials is stalled or money offers are too small, consider going to the media. Be prepared to be the center of some unwanted and unneeded attention. (Consider the future emotional well-being of you child also). If you can tough it out, it may be to your advantage when negotiating. If you go to the media, after signing an Agreement not to do so, you may endanger your financial settlement, unless there has also been a substantial default on the part of the defendant(s).
16. Is all of this harder for women in traditional paternal-istic cultures?
Usually yes. In such cultures, the woman is always the one to blame, the priest is considered the wronged party, and there may be social ostracism for both the mother and child, If enough women stand up for their legal rights in such cultures, this will lessen considerably.
17. What is a custody arrangement?
It is a Court-approved document, which spells out where the child lives, who has custody, who has visiting rights, and what specific financial responsibility both parents have.
18. What type of financial arrangement can I expect?
If you work, you will be expected to pay a portion of the child's expenses. If you are a homemaker, theoretically the father has a financial responsibility for the whole amount. If you a eligible for some type of financial assistance, the amount assessed against the father or institutional Church may be less. If you take public assistance, and do not reveal financial support from the father or the institutional Church, you may be charged with fraud. If your settlement order requires you to keep secret the payment plan, and you need public assistance, confer with an attorney before applying for public assistance.
19. What good is a default judgment?
Once the father has been located by a search service, the money judgment can be served on him. If you name the institutional Church as aco-defendant you may have a financial award from them, especially if the Church has been directly involved in hiding the birth father from you and from the Court.
20. What if the father is transferred to another State?
The institutional Church almost always transfers the father out of the State where the mother is. Court judgments in one State are enforceable in another. Child support judgments are normally enforced by the probation department in the State where the defendant is living. This can be a complicated procedure. Winning a judgment against the institutional Church in the mother's home state makes enforcement easier.
21. What if the father flees to another country?
Secure a judgment in an American court. find out from that country's embassy how an American judgment can be served on a defendant who is living in their country. Most countries have treaty arrangements with America, which spell out how this is done. There are special problems for women in Islamic countries; make sure to confer with an attorney familiar with those problems before trying to enforce an American judgment on someone living in an Islamic country. If all else fails, go to the media, both here and in his country.
22. What happens if my financial condition worsens?
Go back to the original court and seek a modification of the payment plan based on "changed circumstances."
23. What if the father or the institution fails to pay?
Go back to the original court and seek a "motion in support of litigant's rights." Failure to abide by this new Court Order can lead to a contempt order and a contempt order may mean incarceration for the defendant.
24. How will I be paid?
Directly by an official of the Church, or by the father, through an attorney trust account, or through a State's probation department.
25. Suppose he wants to come back into my life?
If he leaves the institution and wants to marry you, make sure he acknowledges paternity and assumes legal and financial responsibility for the child. Get it written down in pre-nuptual agreement. If you want to return to him after going through this emotional wringer, you do not need a lawyer so much as you may need a counselor.
26. Will a Court enforce a promise to marry?
Such laws were called "heartbalm laws" in the past. Almost no State has these laws anymore, and if they do very few courts will enforce them.
27. What if he has fathered other children by other women?
If he is no longer in the institutional church, money judgments may have to be proportioned. If he is still in, the institution may have to pay several women. The case against the father is stronger the more plaintiffs have the same complaint. You may find it too emotional to be a joint plaintiff with another victim.
Copyright 1994 Ronald Sarno, Esq.
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