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Barrister
Barrister, Lawyer
Category: Family Law
Satisfied Customers: 33802
Experience:  Attorney with 15 years experience
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Can a husband get custody of a child even though he knows

Customer Question

Can a husband get custody of a child even though he knows he's not the father but his name is ***** ***** birth certifcate
Submitted: 6 months ago.
Category: Family Law
Expert:  Barrister replied 6 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Expert:  Barrister replied 6 months ago.

How old is the child now?

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Does the child live with the husband and the mother currently?

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Is the biological father known?

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Has the child been in Arizona the entire time?

Customer: replied 6 months ago.
The child is with the mother as she left due to verbal abuse, she is 18 months old . the father is known but has no contact. She has lived in Arizona all her life
Customer: replied 6 months ago.
I am asking these questions for someone else who doesn't have a computer or ay money
Customer: replied 6 months ago.
Why aren't you answering me?????
Expert:  Barrister replied 6 months ago.

Ok, if the presumptive father filed a paternity action to try for custody, then the court would order a DNA test to be performed and if the husband is not the biological father, the court would enter an order reflecting that he has no legal rights to the child and send the order to the Dept of Vital Statistics to amend the birth certificate to remove him.

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So if he is not the true bio father, then if the court gets involved, he would be disestablished as the legal father and would not have any legal rights to the child.

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But at this point, he is the presumptive father so he would have exactly equal rights to the child as the mother..

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thanks

Barrister

Expert:  Barrister replied 6 months ago.

However, there is a court case out in AZ that says that the courts can consider "the best interests of the child" in making a decision about who is the "legal" father, even though a DNA test may say the father is not the biological father.

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Stephenson v. Nastro, 967 P.2d 616 (1998

The Arizona Supreme Court determined that, under the statutes, when a parent raises the paternity issue, it is not necessary to hold a “best interests of the child” hearing before ordering genetic tests. “Best interests” are to be considered only after testing in determining custody and visitation issues. However, the court found that the statutes also establish that a voluntary acknowledgment of paternity is valid and binding until proven otherwise. After 60 days, it can be attacked only for “fraud, duress, or material mistake of fact” and the challenger has the burden of proof. Here, there should have been a Rule 60(C) hearing to determine whether these statutory requirements had been met. Only if
the mother provides clear and convincing evidence that fraud, duress or material mistake of fact has occurred can she too request genetic tests. If she does not meet this burden, tests are inappropriate.

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So the take away here is that even if a father is not the biological father, the courts can rule that he is still the "legal" father if it is in the child's best interests..

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thanks

Barrister

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