Can our child be legally taken away after a paternity test? 25 Answers as of September 16, 2011

In California unless the court orders a paternity test or the parties agree, you do not have to take a paternity test. When a woman gives birth to a child during marriage while cohabitating with the husband that child is presumed to be the child of the husband. This presumption can only be rebutted within two years of the child's birth. In addition, the mother can only challenge paternity if the biological father has filed a written declaration acknowledging paternity. However, if the two years have lapsed then the presumption is conclusive.

She can't deny him, and can't force him to take a test. However a court can, so if she goes to court, she can attempt this, and he should get legal counsel.

Without a court order you can decline. Your husband's ex-wife cannot have it both ways claiming him to be father for support and legal parentage then seek to void his paternity after it has already been legally established.

There are a number of issues here. First, if they were married at the time of the child's birth, there is, by law, a presumption that he is the father. That may be difficult to challenge at this late date. Second, when they were divorced, was there a parenting plan entered? Did they both assert that the child was a child of the marriage? Again, that may make it difficult to change who is considered the father. Third, is there a court order for DNA testing? If there is no order for testing, then, I can't see as he has any obligation to go for the test unless he has previously agreed to do it. Finally, I assume that there is some sort of parenting plan in this case. Until that plan is changed by the court, the parties have to follow it.

The simple answer to your question is "no" because paternity doesn't control who the child lives with anyway. If the child was born while the parties were married, the husband is presumed to be the father. His name can only be on the birth certificate because he agreed to that, so the presumption of paternity is even stronger. Unless there is a court order, the father does not have to comply with a request for paternity testing. If your husband has an "ex-wife" there must have been a divorce case and that case should have decided all issues relating to the child, including, the paternity question. If that divorce case was dealt with properly, it should be too late for either side to bring it up now. However, it seems clear that the child is your husband's daughter, living with her mother, and that you are only a step-mother, only your husband is paying child support, and the child is not "ours" . While there may be a strong emotional connection, you need to recognize the limited "legal" status that you have and that it is only your husband's parental rights that are being threatened. Unless and until the mother actually does something in the divorce case to change the current parenting plan or to belatedly raise the paternity issue, her threats should not be a concern. But, if you (rather than your husband) are the one dealing with the mother on these issues, you need to recognize how she probably resents you implying that you have any "legal" rights by referring to the child as your daughter and that could be the reason she wants to try to exclude your husband completely. F

This is a complicated situation. By statute your husband is considered the presumptive father of the child, and well may be considered the de facto parent under Washington law if he is found not to be the biological father of the child. You should consult with an attorney as soon as possible.

If the father has a relationship with the daughter and if he has paid support through a court order, then he does not have to take a DNA test. Usually, to have a support order there needs to be a paternity of fatherhood. Also, usually, a parent has 2 years to fight paternity. From what you tell me, your husband should be found to be the legal father of the child.

It may be worth considering whether or not any legal authority has ordered your husband to appear for a paternity test. Did the ex-wife provide a court order or legal summons? If it is just the ex-wife's own instructions then there is probably not legal authority requiring your husband to appear for the test.

If there is already a custody and visitation order, then she cannot force him to take a paternity test. If there is no custody order, then she can get a court order for a paternity test but even if the test indicates he is not the biological father, the court will probably rule that he is the legal father since he's been involved in the child's life for 5 years.

Your question requires a complex answer. You are asking whether the child's mother can terminate your husband's contact with the child by demonstrating with a blood test that he is not the father. Usually the question is asked in reverse as to whether a "father" can stop being father after acting as same for an extended period of time. You need to consult with an attorney about this question. Initially, I would expect that your husband has substantial rights to assert his "fatherhood," having been hoodwinked for so long.

The case law is evolving on this issue. It would depend upon what the relationship is between the "father" and daughter and what fraud was involved and if any other man will take his place in the role. Usually it is irreversible after a child is 2 or 3.

It would have to be a part of a court order. If it does get that far you can always petition for custody & visitation orders.

Your husband is not required to show up for the test just on the demand of his ex. Because the child was born during their marriage and he is on the birth certificate, that is prima facie evidence that he is the father and it is unlikely that the mother can over come that. My advice would be to not agree to a paternity test. There is really nothing she can do in court and if she tries, no judge is going to be happy about or lightly "delegitimate" a child. Therefore, I would ignore the paternity test and insist on compliance with the divorce decree as far as custodial and parenting time arrangements.

First, if your spouse has acted as the parent of the child for five years, he will still have rights to custody and parenting time since he has acted in the role of the child's father. Second, depending on how paternity was originally determined, statutes of limitation may have run for disclaiming paternity. You should consult with experienced counsel.

This is one of the kind of cases that makes me happy to be a divorce and family law attorney. I would be very happy to assist your husband. That little girl needs the man who she knows as her father. YES, you can fight this, and YES you have a legal right to go into court and ask that Judge to ORDER her to let your husband see the child. There is case law that says he gets to be her dad even if she is not his biological child.