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Attorney & Mediator
Attorney & Mediator, Lawyer
Category: Family Law
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Experience:  Attorney & Certified Mediator
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is it alegal to have kids with people who are married

Customer Question

I have a 1 year old son with a female who is married i have none her for 3 years now she just now is in the prosess of getting a divorce her and her husband have a child together and he pays child support hardley ever but what my main concern is my child and knowing if he can interfear because they have not been together in 3 years at first i did not no she was married and then my son came along than i found out that she was i hope this all does not backfire on me because i love my son and he does not meed to grow up in the drama please get back at me iam very worried about all of this can he try to say my son is his
Submitted: 8 years ago.
Category: Family Law
Expert:  Attorney & Mediator replied 8 years ago.
Have you established paternity for your child?

Are you on the birth certificate?

When you say the husband paid for child support, was this for your child or another child?

What state is the child in?
Customer: replied 8 years ago.
Reply to LawNinvest's Post: I have not established paternity yes iam on the birth certificate another child my sons in ny his child is in ny
Expert:  Attorney & Mediator replied 8 years ago.
Thank you for your reply.

Just to clarify, you and mom signed an voluntary acknowledgement of paternity to have your named added on your son's birth certificate, is that correct?

Customer: replied 8 years ago.
yes we both sighend paternity acnolgement
Expert:  Attorney & Mediator replied 8 years ago.
Thank you for the clarification.

Because your name is XXXXX XXXXX birth certificate and because both you and mom acknowledged that you are the legal father of your son, the husband has no legal rights over your son. The husband cannot claim custody or visitation. Only the parents have those rights. You established paternity when you signed the voluntary acknowledgement of paternity form.

To answer your question: Is it illegal to have kids with people who are married?

Adultery is a misdemeanor criminal offense in New York, but your have the affirmative defense that you had no knowledge that mother was still married. The court looks at the intent and knowledge of the parties. Mother would have to confess that she did not reveal her marital status when she had a relationship with you.

§ 255.17 Adultery.
A person is guilty of adultery when he engages in sexual intercourse
with another person at a time when he has a living spouse, or the other
person has a living spouse.

Adultery is a class B misdemeanor.

§ 255.20 Unlawfully procuring a marriage license, bigamy, adultery:
In any prosecution for unlawfully procuring a marriage license,
bigamy, or adultery, it is an affirmative defense that the defendant
acted under a reasonable belief that both he and the other person to the
marriage or prospective marriage or to the sexual intercourse, as the
case may be, were unmarried.

Assuming the husband can assert an adultery charge, that charge will not terminate or otherwise affect your legal status as father to your son. So you can proceed to get custody or a visitation order from the mother and father cannot stop that right.

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