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Ask A.D. Barnett Your Own Question
A.D. Barnett
A.D. Barnett, Lawyer
Category: Family Law
Satisfied Customers: 414
Experience:  Attorney since 1994, experienced Divorce Attorney, Child's Attorney, Adoption, Guardian ad Litem
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last year me andmy husband were seperated i lived in alabama

Customer Question

last year me andmy husband were seperated i lived in alabama and he lived in oklahoma,i got pregnant bu this guy at work,well he told me he didnt want the child i got back together with my husband,he is on the birth certificate,now i have filed a paternity suit for child support from this guy,and i just got his response back asking for a dissmissal due to the fact that i mislead the court in that i didnt mention i was married at the time of conception,is this gonna hurt my case? will the judge order paternity test or just throw it out? and could the judge order that since i am married and the child is being supported that the bio father is off the hook?
Submitted: 7 years ago.
Category: Family Law
Expert:  A.D. Barnett replied 7 years ago.
Good morning!

Did your husband sign an acknowledgment of paternity? Is he listed as the father on the birth certificate?

Customer: replied 7 years ago.
yes,but i want the bio father to be involved in her life
Expert:  A.D. Barnett replied 7 years ago.
I understand, but I'm afraid there's a problem.

The fact that you were married at the time the child was conceived creates a presumption of paternity for your husband right there. The fact that he signed an acknowledgment of paternity (or AOP) makes things very complicated. Once that AOP is signed, here's what Alabama law says:

SECTION 26-17-307. PROCEEDING FOR RESCISSION. A signatory may rescind an
acknowledgment of paternity only in a judicial proceeding before the earlier
(1) sixty days after the effective date of the acknowledgment, as provided
in Section 26-17-304; or
(2) the date of the first hearing, in a proceeding to which the signatory
is a party, before a court to adjudicate an issue relating to the child,
including a proceeding that establishes support.

Obviously, 60 days has come and gone, so that's out. After the 60 days:

(a) After the period for rescission under Section 26-17-307 has expired, a
signatory of an acknowledgment of paternity may commence a proceeding to
challenge the acknowledgment only:
(1) on the basis of fraud, duress, or material mistake of fact; or
(2) in the same manner as provided in Section 26-17A-1.
(b) A party challenging an acknowledgment of paternity has the burden of

And Section 26-17A-1 probably doesn't apply because that takes place when someone is adjudicated a father and that person later presents scientific evidence that they aren't.

Establishing fraud, duress, or material mistake of fact isn't as easy as it should be, either. It should be clear that anyone who signs an AOP relying on assurances from the mother that it could *only* be his child would be either the victim of fraud or there was a big mistake made, but that generally isn't enough to meet that standard.

So, I'm afraid the judge may very well rule that your husband is the father. It is very dangerous to sign an AOP because they are very binding, and I caution men not to sign one unless (a) they have already had a DNA test or (b) they don't care about blood ties and want to be the father.

So, if you don't have an attorney, you probably need to get one, because (IMHO) he is raising a very valid defense.

I'm terribly sorry to be the bearer of potentially bad news, but I hope this information was helpful!

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Customer: replied 7 years ago.
ok but what if i have copies of lab results staiting that my husband is sterile?
Expert:  A.D. Barnett replied 7 years ago.
I know this sounds insane, but I'm skeptical it will matter. Paternity is the legal relationship between a man and a child. Your husband established that legal relationship when he signed the AOP. Alabama, like many states, has laws that reflect there is much more to a father than biology, and if a man signs up to be a child's father, that is not easily undone. If your husband is sterile, and wasn't around you at the time of conception, that's all the more evidence that he intended to take the role of father in your child's life. I wish I could be more hopeful, but I think we're at a point where biology is the least of the issue.

I'm sorry.... I wish the law could be more helpful in this situation, but I'm stuck with the rules on the books. You are in a position where you need a skilled, experienced attorney to review your entire situation in detail to see if there is a way to get around what has been done. I wish you and your family the best of luck!
Customer: replied 7 years ago.
this was nothelpful at all
Expert:  A.D. Barnett replied 7 years ago.
Sorry. It would be much easier to tell you what you want to hear, but all I can do is to try and give you accurate information. You don't have to click ACCEPT and I'll opt out so you can get a second opinion.

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