The identify of the mother is never in question, for obvious reasons. However, when non-married partners have a child, there is no presumption of fatherhood. Fathers must formally establish their paternity through a court filing. If the mother acknowledges the father’s paternity, this can be done rather easily, by agreement. If the mother is unsure of the identity of the father, genetic tests must be ordered. Any man named by the mother as a possible biological father will take the genetic test, and the actual father will then be identified. There is one instance when a man is automatically assumed to be a child’s father—when he is married to the mother. In that case, no formal paternity action or genetic test is necessary. However, what happens if the husband may not be the child’s biological father? Because he is assumed to be the father, he must take some action to remove that responsibility. If he learns of this possibility, or is informed by the wife, he must file a paternity action and obtain genetic tests denying his paternity. However, if the mother had an affair during marriage, and became pregnant by another man, it is highly possible that the husband may not know. The husband may not find out until the child is older. He may seek to remove his responsibility then, but there is no guarantee that he will be successful. The State is concerned with the child’s best interest, and a judge may very well decide that it is not in a child’s interest to lose the only father she has known, even if both spouses know that the husband is not the child’s biological father. Depending on the circumstances and the child’s age, the husband may be prohibited from seeking a genetic test to deny his paternity.
Disputes like this between spouses are extremely emotional and difficult. They require a clear knowledge of the law, and the potential consequences, for the parents and child. They must also be handled with care, understanding, and empathy. Attorneys who work clearly and cooperatively with their clients can make an enormous difference in the emotional and legal outcome. They also can help avoid damaging the situation further, but instead advancing the healing process for all involved. I have resolved several of these cases recently, and am available to consult with those facing such difficult choices.
- The Questions of Estate Planning, Part 6: Why - January 6, 2020
- The Questions of Estate Planning, Part 5: How - January 2, 2020
- The Questions of Estate Planning, Part 4: Where - December 30, 2019
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