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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27686
Experience:  25 years experience as practicing attorney
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If you were married and a child was born within that marriage

Customer Question

If you were married and a child was born within that marriage and your husband signed the birth certificate even though he knew the child might not be his and then 6 years later a dna was performed proving he is not the biological father and there is a nasty custody battle does the non biological father have any right to the child? If it help the biological father was notified and is willing to support his dna and establish his rights as child's biological father.
Submitted: 1 year ago.
Category: Family Law
Expert:  Dave Kennett replied 1 year ago.

-Could you explain your situation a little more?
Just to be clear, is it your husband who is seeking custody of the child that is not his or is the biological father seeking custody?

Who do you want to be the father and does the biological father want to be involved?

I'm not quite sure if you are the mother or one of the fathers since you didn't make that clear.

Customer: replied 1 year ago.

Hi David,


 


I am the mother and I was married to the non biological father for about 8 years to date, we are still married but have been separated for the past 3 years and the divorce has been going on that long.


 


The past 3 years my son has gone through alot because of the non biological dad my soon to be ex. It has been a very nasty divorce and he has used my son as a pawn to try to gain control. This past Wed night we had a counseling session and he produced dna papers stating he was not bio father. He told me i had 2 choices : I could either do things his way or he would walk out of the 6 yrs old life.


 


I do not want him in the 6 yr old life and i have since contacted the other father and he is thrilled to be a part of his life and willing to establish his rights. Will the non biological father now have any legal right to continue to fight me on custody and how can I get the current visitation he has dissolved.?He is messing with my sons head .


 


Thanks


Misty

Expert:  Dave Kennett replied 1 year ago.
Dear Misty - There's nothing more selfish than involving a young child in the divorce but some people are just that way. The only way to solve the problem would be for the bio father to file a motion for paternal rights and ask the court to terminate your husband's rights to the child. Until his rights are terminated he is the legal father, bio or not. I am assuming there are no other children of the marriage that would be affected by any of this. If your husband wants to "walk away" he can do so but he can't get out of paying child support unless the bio father steps up and claims the child as his. So your husband doesn't understand the difference between rights and responsibilities. He can give up his rights but the responsibility of child support is on him unless the child gets a new father. So you can stand up to your husband on the issue of custody and you can ask the bio father to file the necessary paperwork to claim his rights as the bio father and get a paternity test if that is still necessary. Your husband can fight for custody so long as he is the legal father but I do not see a court granting custody to someone who is threatening to walk pout of his child's life if he doesn't get his way. The courts see right through this tactic.
Customer: replied 1 year ago.

My current husband who I am having the battle with is so back and forth one day he says he will walk away, the next he is stating is going to fight me for him. He since then lives with another girl who refers to herself as my sons mom and he is just very confused.


 


My attny has already asked the courts to establish paternity to show he is not the bio father. So you are saying that even if it determined that he is not the bio father he will still be able to fight me on custody? He will still have visitation rights until the bio father dna is submitted, confirmed and then another court date issuing his rights is in place?


 


The 6 yr ols has been investigated by DCF 4 times the past yr at his fathers home, last one from the non bio grandmother attempting to assault me in my vehicle, 1 before from the child punching through a glass window and ending up in ER, a dog bite in their care , and being sent in clothes that are too small or cut up:( I know he does allthis to try to hurt me but it is really effecting my son. Is there any right to file for a temp. sole custody until its all settled so that my son is not in crossfire since there is already 1 dna stating he is not the bio father?

Expert:  Dave Kennett replied 1 year ago.
What I'm saying is that he is the legal father of any child born during the marriage. He can fight to remain the legal father, even if the bio father steps up so not being the bio father does not disqualify him as the legal father. Yes he can fight for custody and his other rights but based on what you have said it seems rather preposterous that any court would actually grant him custody. He's using this as a means to mess with you and probably try to avoid child support. The court will not "bastardize" a child and remove the father unless their is a replacement. either through adoption or the bio father stepping up and claiming paternity.
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27686
Experience: 25 years experience as practicing attorney
Dave Kennett and 8 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

You have been most helpful and thanks a million.


 


Have a lovely evening.

Expert:  Dave Kennett replied 1 year ago.
You too and thanks for using our service - Dave

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