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Cowgirl Lawyer
Cowgirl Lawyer, Lawyer
Category: Family Law
Satisfied Customers: 1422
Experience:  Attorney for 22 years. Family law, child custody and support, domestic violence.
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my wife had an affair and got pregnant. we are working it out

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my wife had an affair and got pregnant. we are working it out and staying together. if the guy gets a paternity test and it is his baby how much custody can he get. we would like him to not have any at all. just wondering what are chances are, and what we can do.
Submitted: 7 years ago.
Category: Family Law
Expert:  Cowgirl Lawyer replied 7 years ago.

A husband is the legally presumed father of any child born to a marriage. This is true whether or not the wife has an extramarital affair. In the case In Re: the Matter of Witso, the Supreme Court of Minnesota examined a situation much like the one you describe.

A married couple had a baby. Another man (what is legally known as a putative father) filed a paternity action in court claiming to be the child's father, claiming that he had had a sexual affair with the wife, and demanding that she and the child submit to genetic testing to determine whether he was the biological father. The wife denied the alleged two year affair but admitted to one sexual encounter with the other man (Witso). The trial court granted Witso's motion but allowed the mother to appeal. The appellate court affirmed, as did the Minnesota Supreme Court. That means that ultimately, Witso was allowed to force the genetic testing issue.

This means that the putative father could go to court and demand that your wife and child submit to genetic testing. If he proved to be the father, then he could get visitation and he would have to pay child support. Indeed, such a father can potentially file a case for custody of the child and request the mother to pay child support, although the likelihood of success is low.

The Court in Witso concluded:

"Finally, we note again that even if blood or genetic tests show that Witso is M.R.O.'s presumed biological father under section 257.55, subd. 1(f), James Overby is also a presumed biological father based on his marriage to Overby at the time of M.R.O.'s birth. Section 257.55, subdivision 2 requires the court to weigh the conflicting presumptions, and "the presumption which on the facts is founded on the weightier considerations of policy and logic controls."   Minn.Stat. § 257.55, subd. 2 (2000).   Thus, even though Witso may establish a presumption of biological fatherhood, whether he should be granted custodial or visitation rights with respect to M.R.O. is for an independent determination later to be made by the district court."

What that means is that you are also a presumed father even if the other man is eventually also a presumed father, based upon DNA test results. Thus, you could still contest his rights to visitation and custody based upon the presumption in your favor. That means that there is no guaranteed minimum amount of visitation that he would automatically get if he were successful.

If he files a paternity case, it would be wise for you to have an attorney to contest the matter. It may be possible to prevent him from having excessive visitation based upon the best interests of the child and upon your presumed parentage despite the biology.

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Cowgirl Lawyer

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