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Alex J. Esq.
Alex J. Esq., Attorney at Law
Category: Family Law
Satisfied Customers: 13271
Experience:  Licensed experienced Attorney
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I am filling for divorce and have just discovered my son of

Resolved Question:

I am filling for divorce and have just discovered my son of 4 years is not mine according to non a admissible DNA test. I have not disclosed this info to my wife but already submitted the divorce paperwork online.

I do not want to pay the child support. What would you recommend? I am in Nevada...
Submitted: 1 year ago.
Category: Family Law
Expert:  Alex J. Esq. replied 1 year ago.
Hello. My name is XXXXX XXXXX I will be happy to answer your question.

I am very sorry to hear about this ufortunate and very difficult situation.

Were you married to the mother when the child was born and are you listed as the father on the child's birth certificate?

Have you been treating this child as your son for the last 4 years?
Customer: replied 1 year ago.


Yes to all questions

Expert:  Alex J. Esq. replied 1 year ago.
Dear Allen,

Thank you for your follow up.

Was a DNA test conducted or are you planing to conduct such DNA test, that would be admissible in court to challenge paternity?

Customer: replied 1 year ago.


As of yesterday, I received results for a mail order DNA test that is not admissible in court. I'm absolutely willing to conduct a test that would be admissible in court. She and I have already filed electronically, and as of this evening, I'm supposed to finish filing the final forms to complete the process. Unfortunately, in these current documents, my 4 year old is listed as my legal son. My question is should I amend the current documents and submit a legal paternity DNA test, or is it possible to withdraw these documents and refile without the 4 year old in the documents.

Expert:  Alex J. Esq. replied 1 year ago.
Dear Allen,

Unfortunately, your situation is extremely legally complex and even if an official DNA test shows that this child is not your biological son you would still be considered his legal faher and would be liable for child support.

The only way to contest such paternity, is for you to file a separate petition to disestablish paternity based on fraud, duress or material mistake of fact and the burden of proof would be on you to prove that you in fact aknowledged paternity based on fraud, duress or mistake of material fact.

Also, even if your petition to disestablish paternity is granted, you would not only be released from child support obligation, but you would loss any and all parental, custody or visitation right to this child.

This is an extremely complex legal situation and I would strongly urge you to consult and retain local family law attorney to represent you in all of your upcoming paternity and divorce proceedings.

Let me also provide you with current Nevada Law that governs paternity below. Please review it and let me know if you have any related follow up questions.

urrent Nevada Paternity Law: NRS 126

PATERNITY GENERALLY

NRS 126.051Presumptions of paternity.

1. A man is presumed to be the natural father of a child if:

(a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 285 days after the marriage is terminated by death, annulment, declaration of invalidity or divorce, or after a decree of separation is entered by a court.

(b) He and the child’s natural mother were cohabiting for at least 6 months before the period of conception and continued to cohabit through the period of conception.

(c) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is invalid or could be declared invalid, and:

(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 285 days after its termination by death, annulment, declaration of invalidity or divorce; or

(2) If the attempted marriage is invalid without a court order, the child is born within 285 days after the termination of cohabitation.

(d) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.

2. A conclusive presumption that a man is the natural father of a child is established if tests for the typing of blood or tests for genetic identification made pursuant to NRS 126.121 show a probability of 99 percent or more that he is the father except that the presumption may be rebutted if he establishes that he has an identical sibling who may be the father.

3. A presumption under subsection 1 may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.

(Added to NRS by 1979, 1270; A 1983, 1868; 1995, 732, 2416; 1997, 2304; 2007, 1523)

NRS 126.053Voluntary acknowledgment of paternity.

1. After the expiration of the period described in subsection 2, a declaration for the voluntary acknowledgment of paternity developed by the State Board of Health pursuant to NRS 440.283 shall be deemed to have the same effect as a judgment or order of a court determining the existence of the relationship of parent and child if the declaration is signed in this or any other state by the mother and father of the child. A declaration for the voluntary acknowledgment of paternity that is signed pursuant to this subsection is not required to be ratified by a court of this State before the declaration is deemed to have the same effect as a judgment or order of a court determining the existence of the relationship of parent and child.

2. A person who signs an acknowledgment of paternity in this State may rescind the acknowledgment:

(a) Within 60 days after the acknowledgment is signed by both persons; or

(b) Before the date on which an administrative or judicial proceeding relating to the child begins if that person is a party to the proceeding,

Ê whichever occurs earlier.

3. After the expiration of the period during which an acknowledgment may be rescinded pursuant to subsection 2, the acknowledgment may not be challenged except upon the grounds of fraud, duress or material mistake of fact. The burden of proof is on the person challenging the acknowledgment to establish that the acknowledgment was signed because of fraud, duress or material mistake of fact.

4. Except upon a showing of good cause, a person’s obligation for the support of a child must not be suspended during a hearing to challenge a voluntary acknowledgment of paternity.

(Added to NRS by 1997, 2301; A 2007, 1524)



Expert:  Alex J. Esq. replied 1 year ago.
Dear Allen,

Do you have any related follow up questions?
Customer: replied 1 year ago.


Not sure if the site timed out but if I can convince her to refile the paperwork without the 4 year old mentioned, is that a possibility since we have not finalized it?

Expert:  Alex J. Esq. replied 1 year ago.
Dear Allen,

Thank you for your follow up.

This child is considered to be your legal son and the mother and you have to file your divorce petition and list your legal son, otherwise it would be considered to be fraud upon the court and the only way for you to disestablish paternity is through a separate petition with the court and it would have to be based on the valid DNA test and also you would have to prove fraud, duress or mistake of material fact, as I had described above in order to have a chance of disestablished paternity and if your petition to disestablish paternity is granted, you would be released from any legal obligation related to the child, included but not limited to the child support, but you would also loos any and all legal / parental rights to this child.

I wish you the best of luck!
Alex J. Esq., Attorney at Law
Category: Family Law
Satisfied Customers: 13271
Experience: Licensed experienced Attorney
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