What are my husband's options if he is not the biological father? 22 Answers as of January 06, 2012We performed a secret DNA test on my husband and his 14 year old daughter and it came back he is not the biological father. If he tells the courts, he loses his rights correct? What about the years of child support? He was married to his ex at the time his daughter was born and was named as the father with child support but not on the birth certificate? Not sure if we should say ANYTHING until after she is 18. What are his options?
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
He could potentially disestablish paternity, but that is difficult and time sensitive. He needs to talk to an attorney and immediately initiate a legal action to disestablish paternity, as it is a very time sensitive matter and once the time expires, there will be nothing he can do. As for the child support, he will not be able to receive any of those monies back, but if he is able to disestablish paternity, then he wouldn't have to continue to pay.
Answer Applies to: Florida
Reeves Law Firm, P.C. | Roy L. Reeves
Your husband falls squarely within the new statute (effective Sept. 1, 2011). He has two years from learning he is not the father, to bring a suit to terminate his support obligations. Wait beyond this point and loose the right. Additionally, the obligation to pay child support prior to the learning of the fact is moot, he does not get that back. Though, I am curious, there is no provision to stop him from suing the real biological father - at least none that I know of. If he had not been paying, Mom could go sue for retroactive child support, why can't he sue for the money back. I would love to discuss this case with your husband, there are some unique questions that remain to be answered, such as can he sue the real father for restitution? I have been thinking about it and would like to discuss the facts, see if this is a case worth trying to sue the biological father. Worst case, he can stop his child support going forward, and that is a personal choice, I can certainly understand why, after being Daddy for 14 years he may want to keep that relationship just as it is right now. Which again, raises another question, could we terminate the obligations and demand some rights going forward as sanction for Mom's deceit.
Answer Applies to: Texas
Law Offices of Jayson A. Soobitsky, P.A. | Jayson A. Soobitsky
Assuming that the test was accurate this is a very difficult question that could have very devastating emotional effects on the child. This needs to be considered along with the legal questions that you propose. It is possible to get visiation or even custody of a child even if you are not the natural parent. It is also possible to be required to pay child support. You really need to consult with an experienced family law attorney before taking any action so that you are aware of all of the legal and psychological consequences of releasing that information.
Answer Applies to: Maryland
H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
He can move to set aside the paternity determination based on newly discovered evidence. And while he can certainly get future child support terminated, as well as be forgiven for any past due amounts he may owe, the caselaw suggests that he cannot recover support already paid unless he can show fraud on the part of his ex. See Cohen v. Nudelman, 269 Ga. App. 517, 604 SE2 580 (2004).
Answer Applies to: Georgia
Law Office of James Lentz | James Lentz
Your husband is the putative father and it is ulikely that he will be released from his obligations unless he requests the release AND the bio-dad assumes the responsibilities. This is WAY too complex a question for this forum. Please contact a domestic relations attorney to learn your husband's rights and obligations.
Answer Applies to: Ohio
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
The Court may not approve of the clandestine DNA test and become upset with your husband because the DNA test was secretly done. It is likely far too late for your husband to contest paternity and support. The Court might welldeny his Motion for a DNA test if he sought one at this time (but he could file an OSC to test that issue, understanding that he might lose that OSC). For all intents and purposes, he and his "daughter" developed close interpersonal ties as father and daughter, and revealing the DNA test results could be devastating to her.It might just be best to leave a sleeping dog lie and never tell his daughter.
Answer Applies to: California
John E. Kirchner, Attorney at Law | John Kirchner
You don't provide enough information to adequately attempt an answer to your question. Under the law, your husband is the presumed legal father of a child born during his marriage - regardless of DNA. That presumption controls until such time as a court rules that another presumption (e.g. the DNA test results) should prevail. It may already be too late to challenge the presumption based on marriage, but it isn't clear why he is not listed on the birth certificate or how child support was ordered if there was never a judicial determination of paternity. So, you need to consult an attorney who can better evaluate the situation with more complete information about your case. Waiting until she is 18 to do anything probably won't do your husband any good, but it isn't clear what the real objective is. It is quite probable, however, that the best he can hope for is to stop payment of current child support, but not be able to recover child support already paid - so waiting until 18 (or 19 in Colorado) won't do anything financially beneficial.
Answer Applies to: Colorado
Law Offices of Arlene D. Kock | Arlene D. Kock
Under the law, he remains the presumed father and is legally responsible for his daughter born during the marriage. The deeper implications of this matter is the impact on the child. If she is bonded with her presumed father, wouldn't the correct choice be to recognize that parentage has nothing to do with biology.
Answer Applies to: California
The Law Offices of Robert W. Bellamy | Robert W. Bellamy
Paternity fraud is not uncommon. Given the fact pattern here a presumption of paternity would apply regardless of DNA. The following addresses the problem The Presumption of PaternityLegally actionable paternity errors most commonly occur when a man and a woman are married to each other at the time of a child's conception and birth. Such errors have legal consequences because of something called the "presumption of paternity," which applies in most states.The presumption holds that when a married woman gives birth to a child, her husband is the father of that child. For various legal purposes, it can be important to establish the paternity of a child. The presumption permits the question to be answered simply and without investigation.In most cases, the presumption accurately reflects reality: When two people are married, the babies born to the wife generally are the husband's biological children. As is often the case with legal presumptions, then, this one corresponds to the likely truth.Another example of such a reality-based presumption involves mailed letters: In the absence of evidence to the contrary, a litigant who proves she has mailed a letter with proper postage and the correct address listed has conclusively established that the addressee received the letter in due course. No direct proof of the letter's receipt is necessary. If the addressee introduces evidence that the letter never arrived, however, he can successfully rebut the presumption and disprove receipt of the letter.In the case of the paternity presumption, by contrast, many states do notpermita man to disprove his presumed paternity, even if DNA evidence would positively establish that a child is not genetically his. Unlike the mailed letter presumption, the "presumption of paternity" therefore acts more as a legal command requiring married men tobefathers to their wives' children (except in exceptional circumstances) than as a device for arriving at the truth. Another way to put this is to describe the rule in question as an irrebuttable presumption.
Answer Applies to: Alabama
Diefer Law Group, P.C. | Abel Fernandez
This is a complex issue and you might need to hire an attorney. The presumption is that a child born to a husband and wife is the child of the marriage. The issue then becomes did he know he was the father? Did he have reason to suspect he was not? If so, then he might be too late if he never did anything until now. On a practical note, if he prevails, then yes he might loose rights to be the "father of the child" but the court could still allow him visitation. Look for an attorney to get legal advise.
Answer Applies to: California
Wolfstone, Panchot & Bloch, P.S., Inc. | Mark Brown
Whether you inform your husband (and his daughter) is a moral question, not a legal question. If he is informed of the DNA test results, then he should consult with an attorney to determine his options. In Washington state, if he was married to the mother at the time of the conception and birth, he is the "legal father" - even though he may not be the biological father.
Answer Applies to: Washington
Correia-Champa & Mailhot | Susan Correia Champa
If your Husband was married to the child's mother, he is the presumed father (which doesn't make sense why he is not on the birth certificate.) Yes, if the court entertained a request to set aside the divorce judgment based upon fraud, your Husband would lose legal rights regarding the child. With respect to child support, your Husband could sue his ex-spouse in a civil proceeding to try and recoup the money he paid. The other part of this scenario is the psychological and emotional affect this will have on the minor child. I would think this would be devastating to her to learn that the father whom she believed she had is not actually her father. That being said, I would suggest you contact an attorney immediately regarding your situation.
Answer Applies to: Massachusetts
Beaulier Law Office | Maury Beaulier
In Minnesota, if the father is a presumed parent, such as the child was born during the marriage, there is a Statute of Limitations on actions to disclaim paternity that is capped out at three years. In other words, at the age of 14, whether he is the biological father or not, he is the legal father.
Answer Applies to: Minnesota
Law Office of L. Paul Zahn | Paul Zahn
If he has been the "dad" for the last 14 years, then he has no recourse. Even if he is not the biological father, then it is still highly likely that the court would find that he is the "natural" father. The best advise I can give would be to forget about the results and move on. Frankly, the test should never have been done in the first place.
Answer Applies to: California
Phillip A. Arieff Attorney at Law | Phillip A. Arieff
This matter of paternity and marital presumption are in ch 767 of the statutes. Husbands are presumed by the statutes to be the father. It is a rebuttable(overturn-able) presumption, but only if the court lets it go forward. In either a paternity, divorce, custody, or support action a party (mom, presumed Dad, putative Dad, or guardian ad litem) can ASK the court to rebut the presumption and order DNA testing. Sometimes, especially when kids are young courts go forward to find the real Dad; sometimes when kids are older, a bond has been formed, and real Dad may not be located, courts find that opening up question of paternity is not in the best interests of the child. So whether or not a court will allow digging up and into this matter depends on the courts view of the best interests of the child.
Answer Applies to: Wisconsin