Father, stepfather, legal father, other?

Factual Questions
1

A “very good friend” has an interesting situation and poor Google-fu. The situation is this:

At age eighteen “Lola” got commitment-shy and broke off her engagement to her fiance, “Andy”. It was a ‘Ross&Rachel’ break only with the non-rules spelled out. They were not together in any sense, or expected to be celibate, but the (small) possibility of getting back together was there.

Lola spent a few months away and in that time got pregnant by a casual barely-boyfriend. She decides to keep the baby, and goes back to her hometown in New York State to raise it around her family. She and Andy see each other often, realize how badly they missed each other, and reconcile in spite of the pregnancy.

They marry two months before the baby is born and smoosh their two last names together as the easiest way to decide whose name to give him. Andy wants to put his name on the birth certificate but consults a lawyer to make sure it’s legal. Lawyer says in all likelihood it would work out fine but just in case bio-dude ever comes around, it would be very bad, so advises against it.

Andy and Lola choose a name for the baby together, Andy coaches her through the birth, they leave the ‘father’ line on the birth certificate blank, and go on to have a good marriage with a daughter the next year and a son six years after that. Andy is the only father “Johann” has ever known, and a very good one.

Now Johann is almost nine and Andy and Lola are considering divorce. Lola wonders if the courts will treat Andy’s relationship with Johann differently than his relationship with his other children.

I have learned that in New York, out-of-wedlock babies have no legal father until paternity is established, step-parents who marry the parent after the birth of the child have no rights or responsibilities, and in-wedlock babies are just assumed to be the husband’s. (Please correct me if I misunderstood that.) I presume in the latter case, most of the men were cuckolds and signed the birth certificate out of ignorance. Knowingly marrying a woman who is pregnant with another man’s child and raising it as your own seems to be uncommon enough that I couldn’t find much information about it.

Johann knows that he is biologically related to someone else, as Andy and Lola thought the best time to tell him was when they told him “the facts of life”. Johann spoke to bio-dude on the phone one time years ago after Lola found him on Facebook, but bio-dude and Johann have no interest in one another and haven’t spoken since. They have never met.

So my question is, where does Andy stand in regards to child support, custody, visitation, etc? Also, when Johann is a surly teenager and yells “You can’t tell me what to do, you’re not my real dad!”, will he be right or wrong?

Thanks in advance and mods, feel free to move if I put this in the wrong forum.

2

What do Andy and Lola want? If Andy and Lola are amenable, Andy should officially adopt Johann which would make things easy, or as easy as any divorce could be. That makes Andy on the hook for financial support but also entitled to visitation/custody. It also makes him the official father in case some snot nosed future Johann tries the “you’re not my real daddy” routine.

Of course, all of this should be done via a lawyer because I am not a lawyer and am just talking out of my ass.

3

Lola put her educational/vocational goals on hold so Andy could concentrate on his, and they are still just as poor as they were when they got married. They probably can’t even afford a divorce, let alone adoption. Andy thinks Lola is only interested in wringing him dry, and Lola is scared of what will be if she’s left with three children and no way to support them. Andy is notoriously cheap (with good reason) so even though he would most likely welcome and appreciate the parental rights, is probably not too keen on paying support for three if he is only legally obligated for two. Lola knows of instances where husbands who have always supported the stepchild are ordered to continue that after divorce because the child has “an expectation and a right to support from both parents” and the courts decided that the stepfather is for all intents and purposes the child’s parent. But given that Johann was born in wedlock, is Andy not just a stepfather, but a father, even though his name is not on the birth certificate?

4

So if Andy were not legally obligated to pay for any, would he still pay for the two that are his biologically? If so, then I think in a really fundamental way he’s not the father of the oldest child, and I think that’s pretty crappy for all involved. Feelings can’t be forced, but it’s tragic.

As far as the legal issues go, this needs a lawyer, not a message board. The couple also need to consider what would happen if Lola died. Would Andy want any continuing relationship with Johann or would he just as soon have Johann go to his maternal grandparents while he kept the other two kids?

5

He is legally the father because they were married when she had the child, the child is assumed to be his. However, if he isn’t on the birth certificate (and signing it knowing the kid wasn’t his would have been fraud), there will have to be a court order to put him on it.

This is the wild card and is up to New York law and possibly the judge’s whim. Courts usually require a DNA test to add someone to a birth certificate, but maybe not for a 9 year old that is assumed to be his. But even with the test, he’s been acting father for so long he will probably still have visitation/support.

So, in the end, they will most likely end up with a visitation/support agreement and he will be considered the father, but how they get there is hard to predict.

6

They really need to see a lawyer who is licensed to practice in New York. And you are unlikely to find one here on the board.

That said, given your description of the situation, Johann will likely be treated like the other kids. He wasn’t born out of wedlock. He may be someone else’s bio-kid, but he was born to Lola while married to Andy. Andy treated him as his child for 9 years. And the court is likely to enforce that situation going forward.

7

Then he neither understands nor appreciates parental rights, as they are based on responsibility.

The very idea he would try to cheap out on the support order because his oldest son is not his bio-baby is appalling.

I married someone with a child. I consulted a lawyer about my financial obligations and made some financial arrangements accordingly.

I also paid half the mortgage on a house large enough for him to have his own room, co-signed for financial aid, and included him in my parents’ obituaries. Hell, every house we moved into, his bedroom was always the first one we finished. For better or worse - often worse - this is my child.

8

The lawyer he talked to before the birth told him exactly that, but also that it was very unlikely to ever be found out. Andy is a very honest and law abiding guy, therefore he didn’t.

@j66, There are no orders of any type yet. I think they are still at the talking about it stage. But given his character, it’s unlikely he would shirk his duties.

@MandaJo, His way of thinking seems very black-or-white. Law, order, duty; those make sense to him. Sentimentality, sympathy, empathy; not so much. I honestly don’t know what he would do without a legal obligation to do it.

9

IANAL.

I would suspect that since Lola and Andy both acknowledge that Johann is not Andy’s child, Andy is not on the birth certificate, and Andy has not adopted Johann, that Andy has no parental rights with respect to Johann. So if Lola does not wish to grant any custody or visitation of Johann to Andy, then Andy has no right to requrest them. Also Andy has no obligation to provide any child support for Johann. Clearly, Lola and Andy can negotiate anything they want with respect to support, visitation, and custody, between the two of them. WRT to their other two kids, that’s different matter.

10

They need to talk to a NY lawyer. You know, most lawyers will do a half-hour free consult for potential new clients.

However, the bolded part above is the critical piece. If NY considers babies born in wedlock to be the husband’s, it most likely doesn’t matter who donated the sperm - Andy is the father.

At least that’s the way it works in most states with that law.

11

I’m sure Johann will be thrilled when he finds out that the only father he’s ever known has rejected him.

12

Or that his mother is invoking a loophole to keep him away from the only father he has ever known, while his siblings are off on their “Daddy makes up for it on the weekend” visits to Six Flags etc.

The basic rule here is that he is legally the father, due to marriage. He might manage to get out of it by arguing DNA, but (IANAL) I suspect that is something that has to be raised within a short time aftr birth or discovery of the facts. Snce he knew the facts for 9 years and still acted as a parent, doubt that he can use legality now to escape obligations.

Even if he did or tried, why would the mother choose to deny him visitation? How would she explain that as he kid grows up? “Daddy only wanted to give me 40% of his income, not 60%, so in return I made sure you could never talk to him again…”. Kids are not as dumb as we think they are…

Just out of curiosity, what is the rate difference between support for 2 kids and support for 3 kids in NY?

13

Did you read the thread? Andy is the one that wants to lose the legal connection, and the OP seems to think it highly likely he wouldn’t pay any child support at all if it were not legally required.

I agree that there could be some other situation where what you are describing could apply, but there’s no evidence of that here.

It seems to me it’s not so much that Andy loves the oldest son less for not being his biological offspring, but that he isn’t particularly attached to any of them. I don’t know if that makes it better or worse.

14

My guess (IANAL) is that a parent who was married at time of birth and has known the real DNA situation for 9 years is going to need some serious legal work to get out of parental obligations. If they can’t even afford adoption (and presumably now it’s too late) then I doubt he’ll be affording the legal fight any time soon.

(How does NY state work? Do they send people to mediators or something unless they insist on and can afford a full court fight? If so, a mediator is not going to deviate from the letter of the law - Andy=daddy)

But I’ll repeat an important life lesson… parental rights are not “pay as you go”. Keeping a parent (or whatever) away because they have not made payments is almost as reprehensible as not making payments. Yes, I understand this is not an issue at this point.

Yeah, sounds like Andy is emotionally challenged all around. Too bad, especially if it ends up hard on the kids.

15

Nobody is rejecting anyone, or keeping anyone away from one another, or seeking to lose or make any legal connection that doesn’t already exist. (At least not now, and I hope for the kids’ sakes it never comes to that.) The involved parties just want to know what the existing legal connection actually is.

16

In that situation with my partner’s child I just said “No, I’m not your mother but nonetheless you will treat me with respect…”

In Andy’s case the bit after the ellipse would be something like I am the man who married your mother and raised you.

17

In *most *states, in *most *situations, if Andy never legally adopted Johann then he has no legal obligation to support him physically, emotionally, or financially. Notice the emphasis on “most.” As others have said, for a definitive answer, you would need to consult with a lawyer.

Also note that in most states, in most situations, bio-dude can be asked to submit to a court-ordered paternity test and made to pay child support on the child that he has never had any contact with (if he can be located).

18

But also, in almost every jurisdiction I have ever heard of, a child born in wedlock to two parents is legally their child. I have never heard of a “but if the birth certificate line is blank” or “before 9 months are up” exceptions, ever. I find only these exceptions mentioned: (http://www.usatoday.com/news/nation/2002-12-02-paternity-usat_x.htm) Note most of the issues are about non-fathers that have been misled. There is a minor set of case law I have heard about where a boyfriend is made to pay child support for a child born before he came into the picture…

New York is not in the lists.

In Texas, for example,

Perhaps this is the closest to the situation:

In this article, it is about a child thinking the “father” really is the biological father; but presumably the same logic would apply in general in this case.

19

Also see this: http://nydivorcefacts.com/child-support-101/

The difference between 2 children and 3 children is 25% vs. 29% of income (some math may apply!). 4% of , let’s say $40,000/yr is $1600/yr or an extra $133/month.

20

If Andy wants to fight Lola over $133 a month relating to the support of Johann, who he raised and is really the only father that Johann has known, then I say we take Andy straight to the Pit.