Paternity in Divorce
Sometimes a couple may be separated for years and not file for divorce, existing in separate households, and even forming new relationships. If a child is born during such a separation, they are still considered a child of the marriage and the husband is still considered the legal father of the child. When a divorce is eventually filed in such situations, there could be a child that is born during the marriage that is not the biological father of the husband. In such a case, the husband is almost always going to be presumed the legal father of the child unless he objects and requests the court to declare otherwise.
In such a case, there are several options to obtain a divorce and take care of this potential issue. If the biological father is living with the mother, and willing to cooperate fully, then an uncontested divorce may be possible but at least one hearing will likely be necessary. In such a case, the parties would agree as to all other children of the marriage, all property division, and all other marital issues. As to the child that the husband is not the biological father of, both parties will agree as to who the biological father is, and all will perform DNA tests to verify the biological father. When the uncontested divorce is filed, the biological father and the husband will sign paternity affidavits stating who the biological father is. Subsequently, DNA testing can be performed and once the biological father is verified, this can solve the issue of removing the husband’s status as the legal father of the child and allowing the biological father to step in as the legal father of the child.
Additionally, the biological father can file a petition for adoption and be awarded custody through the probate court. This can be done after the divorce decree is entered. To do so, the mother and biological father would usually need to be willing to co-parent the child and could go through the probate court to properly adopt. Basically, the husband must have the legal status of father removed and replaced with the biological father and this can be done through divorce and probate court, but can only easily be done if the biological father is present and cooperating. If the biological father is unknown or is unwilling to step in as the father of the child, then the process can be more difficult since a court may be unwilling to have the legal father removed and not replaced with anyone else, essentially leaving the child without a father. The process for removing the husband’s legal status as father without replacing him with another father, can be lengthy and difficult.
If you and your spouse have been separated and a child was born of a father other than the husband, when a divorce is sought you will likely need a lawyer to help you navigate through the legal process. Depending on whether the biological father is present in the child’s life or not, the attorney’s fees can vary greatly. Give us a call today for a consultation to decide the best way to proceed in such a situation.