Kevin and Laura are married. Kevin suspects Laura of having an affair. She becomes pregnant and he doesn’t believe it’s his child. So 9 months later she gives birth, he has the kid’s DNA tested, and it’s not his. As Laura’s husband he is legally presumed to be the father of any children she has while married. He decides to divorce Laura and want’s nothing to do with her or her child. How does he go about preventing paternity being established over the child and preventing Laura from registering the birth with him as the father? Can he prevent her from giving the child his surname? Is there any way she can make him pay child support? Does it matter (to the courts) if they already have a child or two together? Also, could he use her adultery as grounds to deny her alimony?
First, the necessary disclaimers; I’m not a lawyer, and you live in a state I don’t live in.
An old friend of mine went through that dance a few years ago, here in Indiana. He divorced his wife, she got preggers in his absence, he remarried her, and the encore didn’t work out. Here’s what his lawyer told him:
In this state (Indiana,) if a DNA test proves he’s not the papa, before the child is 6 months old, the father may disclaim the baby, by court action. After 6 months, she’s his daughter legally, even if she isn’t biologically. There’s also the matter of getting the test done if the mother doesn’t want to cooperate.
My friend decided he loved the kid, and he did not pursue the disclaim.
Once again, see the first paragraph.
What can the mother due to stop a paternity test? Can’t the presumptive father get a court-ordered one over her objections?
I am not a lawyer either but there have been plenty of articles about this in the news over time. Like most things parental related, it can go horribly wrong for the presumed father (in this case by marriage) if things don’t work out according to the common recipe. Like most things in the U.S., this varies by state but it is quite possible for a male to be forced to pay child support for a child fathered illegitimately even if there is conclusive biological proof that the child is not his. The common theme in the real life stories is that the courts are mostly concerned with the wellbeing of the child no matter who pays and the longer the paternity tests are delayed, the worse it becomes legally for the former husband. The legal situation is very different for a husband that disputes paternity at birth versus a five year old that he claimed as his own before.
Also, anyone can be named almost anything in the U.S. No one owns names and the mother is often one that has full control of the birth certificate and even that name can easily be changed later. When my first daughter was born in Massachusetts, the nurse can in with a birth certificate to sign and she did. When I asked for a pen for my turn to sign, I was told that wasn’t necessary and there wasn’t a place to do that. My daughter is obviously mine but it give a quick reminder of legal parental control from the very beginning.
The courts decide the rest of your question assuming they are contested but it doesn’t always work out well for the male. I will see if I can find some recent cites.
No alimony due to adultery? That seems unlikely to me.
You have to remember that the laws were written before DNA testing was possible. In a lot of states the laws have not been changed to reflect these new technologies. Thus, it’s not really the court at fault. They’re simply enforcing the laws on the books.
I recall an effort in Illinois to require DNA testing on all newly born children. It died quickly due to cost.
Here in Israel the answer is simple: you can’t. The husband at the time of conception is the legal parent. End of story. This cannot be disputed by anyone, and DNA testing proving the child is illegitimate is inadmissible in court.
Actually, the laws on parentage are harsh for a reason not related to the difficulty of proving parentage.
The laws are there because it is in the best interests of the child to have parents as soon as possible. We don’t want people coming back in ten years to disown a child because they’ve changed their minds, get a divorce, etc. etc. If you can’t be bothered to make a fuss early on, you’re the parent, and too damn bad if the kid isn’t your biological issue.
In Illinois, parentage is established by signing the birth certificate or executing a voluntary acknowledgment of paternity. Those are binding, and will only be overturned in the event of fraud or a few other things, none of which are “the kid actually wasn’t mine, and here’s the DNA”. The husband in a marriage is presumed to be the father, but that presumption is rebuttable, if an action is filed quickly.
Obviously, the mother can also sue to prove paternity, but that’s a bit beyond the issue here.
If it comes down to a question of paternity, the state offers free tests if both parties agree to be bound by the results. If the parties won’t go that route, a court will order a DNA test. Parentage is pretty easily determined by DNA, so there’s not many cases in which biological parentage is actually contested; most cases involve people changing their minds down the line, with resulting harm to the well-being of the child, and that is why the courts don’t have much sympathy for dads who dick around.
Not a lawyer but:
In California, at least few years ago, it is pretty straight-forward to do a DNA test - but only until the child is 3 years old. After that, even if you prove the child isn’t yours it is too late. I actually saw a case wherethe father presented evidence that his wife’s 6 year old wasn’t his and because of the law, the Judge had to tell him TFB.
That’s the law in South Carolina. If you prove adultery, it’s a complete bar to alimony. Your state may have different laws.
Also in South Carolina, a father who admits paternity is the father. A married man is the putative father of his wife’s child, and the presumption may be rebutted by the man, the wife or the “real” father, but someone must act quickly if they believe the child is not the man’s or he will be considered the father forever anyway. Yes, it’s in all the best interest of the child.
The court may order the mother to change the baby’s name. I had one case where the unmarried father sued for visitation, offered to pay child support and wanted the child to bear his name. The court agreed to all, over the mother’s objections. Because it was in the best interest of the child.
NB. I am a lawyer, but I am not your lawyer and I am probably not even licensed to practice in your state. I don’t know any of you and do not represent you or anyone else. This is not legal advice and should not be construed as legal advice. This is an anonymous public message board and I could very well be lying. Conduct yourselves accordingly.
“Changed their minds” and "dick around’ seem pretty harsh and don’t contemplate the situation in which a divorce is precipitated years down the line because a guy discovers infidelity and starts probing into legitimacy issues that he had no reason to doubt at the time of the birth. Or is it your contention that “most cases” are ones in which the dude had every reason to believe the wife was stepping out at the time of conception, but was just too damn lazy to say anything so that it’s fair on estoppel-type grounds to hold his inaction against him? If so – cite?
Or is your contention that every married guy ought to suspect paternity fraud in any given birth so that there’s a de facto duty to test DNA any time a kid is born, failing which you have slept on your rights? If so, reflective of a pretty dim view of female chastity, but given some of the statistics that crop up when DNA does get tested – perhaps deservedly so?
No cite other than experience with a lot of parentage cases. Fraud is usually a reason to rescind parentage. But then again, say a guy has raised a child until the age of 16, been a dutiful parent and everything, then discovers his wife has an affair, say with Adam West. He’s pissed, so they get a divorce, and now he wants to disown the child. In matter of fact, that guy is the child’s parent. Biodad isn’t a parent; he’s a donor.
Honestly, the “adultery discovered years later” case is pretty rare; most cases are unmarried mothers and the sort of white trash family dramas of the sort I’m sure you can imagine.
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I know of two of them personally except they aren’t unmarried or white trash family dramas at least outwardly. One was a long-time married couple and quite wealthy. They had a seemingly nice family together with grown kids. She got restless in her old age and decided to get divorced and take as much as she could. To put the cherry on the banana split, she revealed that none of the kids were biologically his and he was probably infertile the whole time but that was never apparent because she always had a stable full of stallions. The tests confirmed it but he and the kids did the right thing and paid little attention to the results and shunned her. This type of thing is supposed to be fairly common and the junior high science lesson on dominate and recessive eye colors always leaves a kid or two in class scratching their heads.