Family Law

Dealing With Paternity Issues in Divorce

By Kristina Otterstrom, Attorney
Divorce is rarely easy, but it can get even more complicated if there's a question about the identify of your child's father. Learn more about the process of establishing paternity.

For a variety of reasons, it’s important to establish the identity of your child’s biological father. With the advent of DNA tests, proving paternity has become fairly simple.

Presumption of Paternity During Marriage

When a couple is married, the law presumes that the husband is the child’s father. Typically, the husband will not have to submit to a DNA test to establish his visitation, custody, and other parental rights and responsibilities. One exception is if the wife claims that her husband is not the child’s father. The wife bears the burden of proving that paternity belongs to someone else. Although paternity can be proved or disproved by a simple DNA test, testing isn’t so simple if the husband objects. In some situations, a court will order a parent to submit to genetic testing if there’s good reason to believe he isn’t the father.

Unique issues can come up for same-sex couples trying to establish paternity. The child of a same-sex couple may be biologically related to just one or neither parent. In some cases, the non-related parent may formally adopted the child. Many states follow the Uniform Parentage Act (UPA), which is another way for same-sex parents to establish parental rights to a child. Read this Nolo article if you have more questions about parentage issues in same-sex marriages.

What Happens to a Husband’s Rights if He’s Not the Father?

Typically, a biological parent carries both the rights and responsibilities to raise and financially and emotionally support a child. In certain unique circumstances, a husband may have unknowingly raised an unrelated child as his own. Specifically, in one Florida case, a pregnant wife never told her husband that their child was not his. The wife informed the child’s biological father and arranged regular visitation between the bio dad and the child. The unwitting husband raised the child as his own and sought visitation during the couple’s divorce. The child’s biological father also sought visitation. As a result of an obscure Florida rule which named the legal father as the one on the birth certificate (in this case the husband), the court denied the biological father's request for regular visits.

In most states today, and with improving genetic technology, this would probably not be the result. A biological parent carries the ultimate right to parent a child unless parental rights have been terminated. But if you’re an unrelated parent who has raised a child as your own, terminating that relationship would probably not be in a child’s best interests. And ultimately, a child’s best interests are central to any custody decision.

How Will My Paternity Case Affect My Divorce?

If you address paternity as part of your divorce, you may end up with two simultaneous cases resolving different issues. For example, the child’s biological father, not your ex-husband, will be responsible for paying child support. Additionally, a court will create a custody schedule as part of your paternity action. The final paternity order will spell out visitation schedules, which parent is responsible for medical insurance, how child exchanges will take place, and who will pay for extracurricular activities and child support.

Even though your divorce won’t directly address the issues in your paternity suit, your divorce will be affected by it. Specifically, a spousal support award may take into account one parent’s infidelity and/or child support payments. While a court won’t reimburse a spouse for raising an unrelated child, in some situations a judge may order the biological parent to pay retroactive child support. Finally, a court may order that certain offsets be taken against your share of the marital assets if you’re the mother and purposefully hid the child’s biological parentage from your husband.

Questions for Your Attorney

  • I love my child and would like to have custody, but I have suspicions she is not my biological daughter. What should I do?
  • My spouse is challenging paternity, but I’ve always been faithful and know this child is ours. Do I have to submit to DNA testing?
  • My spouse had an affair and admitted the child is not mine. Can I have visitation without having the obligation of paying child support?
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