Can the biological father of my son force us in a court of law to do anything about child custody? 8 Answers as of February 19, 2014

I and my wife have been married 25 years we have 2 son my oldest son is not mine. My wife had an affair and did not tell me until after the fact he was not my son. I sort of suspected but did not care. We reconciled however once in a blue moon this guys shows up somehow in a random text, or Facebook message eluding he knows he is the father. I am on the birth certificate, he has never filed to say he is the father and my son who is now 12 knows no different. I am not sure what my wife and I would do if he pushed the issue since if you count the pregnancy it's been well over 13 years since she saw him. Can he force us in a court of law to do anything? Should we be worried, we believe he will just go away again but worried a little.

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Law Offices of Gerard A Fierro
Law Offices of Gerard A Fierro | Gerard A Fierro
In California, you are considered the presumptive and legal father of the child since you are married to the mother at the time of the birth. Any biological father only has up to the child's second birthday to request a DNA test to challenge your legal status as the father. After raising the child as your son for all these years, it is highly doubtful that this alleged "bio-dad" would get any rights.
Answer Applies to: California
Replied: 2/19/2014
John Russo | John Russo
I understand your fear so lets see if I can at least make you both feel a little less upset over this. I am not sure of your jurisdiction so I will tell you what the majority of jurisdictions, (mine RI included) do when faced with this issue, Matter of fact not blowing my horn but my former partner and myself set the case law precedent on this issue here about 25 years ago now, wow that long! Anyway you are presumed the legal father and unless you or your wife say differently no Judge should, or would even entertain any allegations that are different. When a child is born and the birth mother is still legally married the state must place the husbands name on the birth certificate, which in your case they did, therefor you are the legal father and after 12 years no one will touch that issue. Think about this, in this wacky world we live in if the courts had to order DNA testing for every person who came out of the woodwork claiming a child might be their's, and that child was born during a marriage and the husband had placed his name on the birth record, then there would lines around every court house in the country so rest easy that's not happening, unless you agreed to DNA testing and also agreed that you would remove your name and place the others on the birth certificate which I doubt you would. So again, no court will go there why would they, the child already has a legal father. I would not worry and if he filed something down the road if you and your wife stick together on this I can just about guarantee you the court would dismiss the action. Relax, and good luck, not many men think as you do, and you did the right-thing here, in the end the child was and is the innocent party in all of this, and most likely loves you.
Answer Applies to: Rhode Island
Replied: 2/19/2014
Grace Law Offices of John F Geraghty Jr.
Grace Law Offices of John F Geraghty Jr. | John F. Geraghty, Jr.
Yes he can try but he would have an uphill battle.
Answer Applies to: Georgia
Replied: 2/19/2014
Provda Law Firm
Provda Law Firm | Bruce Provda
It would unlikely he would gain custody. If he pushes for parental rights then he is on the hook for child support.
Answer Applies to: New York
Replied: 2/19/2014
Musilli Brennan Associates PLLC
Musilli Brennan Associates PLLC | John F Brennan
Not worry about it, deal with it if it comes up. Make sure that you have proof that he has been maintaining he is the father for an extended period of time. In Michigan he should lose and have no rights. In the other hand, the next time he shows up, tell him you are going to seek child support.
Answer Applies to: Michigan
Replied: 2/19/2014
    Law Office of Annette M. Cox, PLLC
    Law Office of Annette M. Cox, PLLC | Annette M. Cox
    He could file a petition to establish paternity, legal decision-making and visitation. If that happens, you can raise the fact that he has known of the child and failed to establish a relationship with him. He might counter that he was not given the opportunity, however the fact your son also does not have a bond with him means before visitation could be established, he and your son would need some kind of therapeutic intervention to help establish a bond/work out abandonment issues, etc.
    Answer Applies to: Arizona
    Replied: 2/19/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Yes, he can petition the court for a paternity test and ask for visitation/custody. The problem you have is that you cannot petition to terminate his rights until he has rights and until there is a paternity test, he has no rights. I honestly don't know what you can at this point but wait.
    Answer Applies to: Idaho
    Replied: 2/19/2014
    Law Offices of Helene Ellenbogen, P.S.H | Helene Ellenbogen
    Since you have acted as the child's father for 12 years, a court is not likely to change your status as the legal father at this point since it is not in the child's best interest. If this man continues to intrude on your lives, file an anti-harassment petition.
    Answer Applies to: Washington
    Replied: 2/19/2014
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