# Father, stepfather, legal father, other?
**URL:** https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319
**Category:** Factual Questions
**Created:** [July 25, 2011, 10:28pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319 "2011-07-25T22:28:43Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@I\_Am\_The\_Lorax](https://boards.straightdope.com/u/I_Am_The_Lorax)
#### Post date: [July 25, 2011, 10:28pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/1 "2011-07-25T22:28:43Z")
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.
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### Author:  [@hajario](https://boards.straightdope.com/u/hajario)
#### Post date: [July 25, 2011, 10:34pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/2 "2011-07-25T22:34:12Z")
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.
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### Author:  [@I\_Am\_The\_Lorax](https://boards.straightdope.com/u/I_Am_The_Lorax)
#### Post date: [July 25, 2011, 11:50pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/3 "2011-07-25T23:50:58Z")
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?
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### Author:  [@MandaJo](https://boards.straightdope.com/u/MandaJo)
#### Post date: [July 26, 2011, 12:23am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/4 "2011-07-26T00:23:19Z")
> [@I\_Am\_The\_Lorax](#):
>
> 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.
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?
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### Author:  [@Fubaya](https://boards.straightdope.com/u/Fubaya)
#### Post date: [July 26, 2011, 1:18am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/5 "2011-07-26T01:18:02Z")
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.
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### Author:  [@Bartman](https://boards.straightdope.com/u/Bartman)
#### Post date: [July 26, 2011, 1:36am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/6 "2011-07-26T01:36:44Z")
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.
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### Author:  [@j666](https://boards.straightdope.com/u/j666)
#### Post date: [July 26, 2011, 1:49am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/7 "2011-07-26T01:49:59Z")
> [@I\_Am\_The\_Lorax](#):
>
> 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.
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.
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### Author:  [@I\_Am\_The\_Lorax](https://boards.straightdope.com/u/I_Am_The_Lorax)
#### Post date: [July 26, 2011, 5:51am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/8 "2011-07-26T05:51:10Z")
> [@Fubaya](#):
>
> 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.
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.
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### Author:  [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)
#### Post date: [July 26, 2011, 1:46pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/9 "2011-07-26T13:46:07Z")
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.
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### Author:  [@redtail23](https://boards.straightdope.com/u/redtail23)
#### Post date: [July 26, 2011, 3:24pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/10 "2011-07-26T15:24:34Z")
> [@I\_Am\_The\_Lorax](#):
>
> 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.
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.
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### Author:  [@Alessan](https://boards.straightdope.com/u/Alessan)
#### Post date: [July 26, 2011, 3:46pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/11 "2011-07-26T15:46:13Z")
I’m sure Johann will be thrilled when he finds out that the only father he’s ever known has rejected him.
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [July 26, 2011, 6:04pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/12 "2011-07-26T18:04:38Z")
> [@Alessan](#):
>
> I’m sure Johann will be thrilled when he finds out that the only father he’s ever known has rejected him.
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?
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### Author:  [@MandaJo](https://boards.straightdope.com/u/MandaJo)
#### Post date: [July 26, 2011, 6:11pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/13 "2011-07-26T18:11:57Z")
> [@md2000](#):
>
> 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.
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.
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [July 26, 2011, 6:31pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/14 "2011-07-26T18:31:59Z")
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.
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### Author:  [@I\_Am\_The\_Lorax](https://boards.straightdope.com/u/I_Am_The_Lorax)
#### Post date: [July 26, 2011, 9:02pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/15 "2011-07-26T21:02:48Z")
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._
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### Author:  [@Springtime\_for\_Spacers](https://boards.straightdope.com/u/Springtime_for_Spacers)
#### Post date: [July 26, 2011, 9:51pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/16 "2011-07-26T21:51:55Z")
> [@I\_Am\_The\_Lorax](#):
>
> 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?
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.
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### Author:  [@gallan](https://boards.straightdope.com/u/gallan)
#### Post date: [July 26, 2011, 10:10pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/17 "2011-07-26T22:10:08Z")
> [@I\_Am\_The\_Lorax](#):
>
> The involved parties just want to know what the _existing legal connection actually is._
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).
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [July 27, 2011, 1:23am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/18 "2011-07-27T01:23:53Z")
> [@gallan](#):
>
> 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).
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](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…
> [@](#):
>
> Gradually, legislators are reshaping paternity law. Alabama, Arkansas, Georgia, Iowa, Ohio and Virginia now permit ex-husbands and out-of-wedlock fathers to end child support through DNA. Maryland has made the same change via court decisions.
>
> Colorado, Illinois and Louisiana grant relief only to ex-husbands, allowing them to offer genetic proof. Texas allows ex-husbands four years from a birth to disprove paternity and gives unwed fathers unlimited time. A sweeping bill that would authorize married and unmarried fathers to offer DNA evidence is working its way through the New Jersey State Assembly.
>
> Carnell Smith, 41, an engineer in Decatur, Ga., who was getting nowhere in challenging a support decree, started a group called U.S. Citizens Against Paternity Fraud that lobbied for the law Georgia Gov. Roy Barnes signed in May. The slogan on the Web site of Smith’s group ([www.paternityfraud.com](http://www.paternityfraud.com)): “If the genes don’t fit, you must acquit.” Smith is back in court and says, “I fully intend to be one of the first people to be released.”
>
> Pending in Vermont is the toughest bill of all. It would make a mother’s knowingly false allegation of fatherhood a felony that could put her behind bars for up to two years and fine her up to $5,000. “A woman almost always knows who the father is, and if she puts down the wrong person knowingly and it’s costing him money, it’s just plain fraud,” says state Rep. Leo Valliere, a Republican, the bill’s sponsor.
>
> Men’s rights groups aren’t advancing everywhere. California Gov. Gray Davis vetoed a bill in September that was opposed by women’s organizations. It would have given men two years after discovering they weren’t the father to produce the DNA evidence to prove it. Florida paternity fraud bills died this year. A package of bills passed the Michigan House 102-0 but is stalled in the Senate.
New York is not in the lists.
In Texas, for example,
> [@](#):
>
> Texas Family Code (TFC) §160.204 (a)(1) states: “A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage.” If the husband is the presumed father, the adjudication of paternity must occur within four (4) years, because under TFC §160.607 (a), “a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth (4th) anniversary of the date of the birth of the child.”
Perhaps this is the closest to the situation:
> **[Port And Sava, Attorneys At Law - New York Divorce Lawyers Helping You To A...](https://nydivorcefacts.com)**
>
> New York Divorce Lawyers helping you to a better future
> [@](#):
>
> Under New York Family law, it is possible for a non-biological father to be declared the parent. This is called “equitable estoppel.†The purpose of this rule to is protect a child who has been raised to believe that a certain person is his father…
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.
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### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [July 27, 2011, 1:31am UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/19 "2011-07-27T01:31:49Z")
Also see this: [http://nydivorcefacts.com/child-support-101/](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.
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### Author:  [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)
#### Post date: [July 27, 2011, 2:35pm UTC](https://boards.straightdope.com/t/father-stepfather-legal-father-other/590319/20 "2011-07-27T14:35:41Z")
> [@Omar\_Little](#):
>
> Clearly, Lola and Andy can negotiate anything they want with respect to support, visitation, and custody, between the two of them.
> [@md2000](#):
>
> an extra $133/month.
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.
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