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FamilyAnswer, Lawyer
Category: Family Law
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Experience:  10 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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My husband is considered the presumed father of our child because

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My husband is considered the presumed father of our child because she was born within the marriage, however he is gay and I do not believe he is the father of my child considering within 5 year marriage we were intimate once. Is there anyway I can push through the paternity and make him comply with the motion for scientific paternity? Would it do any good or is he always going to be the presumed father?
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. Are you in the process of divorcing? Does he believe he is the father and if so, is he willing to pay child support? Do you have an idea of who the father is? I am just trying to get an idea of what remedy you want and any relief sought, through the court. Thank you.
Customer: replied 3 years ago.

We originally had a custody in NC , while we were married he was in the marines. I was not aware at the time that the only reason he married me was to produce a child. We are in the middle of a divorce but we have had a previous custody battle before. To be honest , neither of us cares about the divorce. This is a custody battle. During the first custody battle he was awarded residential custody because he was a marine in NC, and I was in another state unable to make it to court, but I retained my parental rights, so I pay child support. We have joint custody and at the present time are still married but he does not comply with the court order regarding shared parental time, and visitation. Since he was given residential custody, I have only been able to see her once a year. I have asked about skype calls since I live in Tennessee , but he acts as if he agrees then refuses.


I am trying to get residential custody of my daughter, because he has her in a dangerous environment. ( I also have proof and witnesses of this.) The custody and divorce is now being held in Florida.

Eliana, thank you for the additional information. It helps to clarify what is going on. It is important to remember that if there is a court order in place, regarding shared parenting time and visitation, he needs to comply. His failure to do so could result in him being held in contempt of court and the Judge stepping in to take action. If you have been awarded specific time by the court, he can not take it upon himself to stop or prevent that from happening. As such, one of your goals should be try and have him help in contempt. As far as your current attempt to gain residential custody, the Judge is going to want to see a substantial change in circumstances since custody was previously ordered and that it is in the best interest of the child, to now go live with you. If he has her in a dangerous environment at this time, it is certainly a basis to use to get the custody modified. The proof you have and witnesses will certainly need to be presented to the Judge, who can then weigh that information on the situation and if it is best to have your daughter now live with you. As far as the issue with him being the father and you thinking it is not possible, that is going to be a lot more difficult to deal with. It is clearly the law in Florida that a child born or conceived during a lawful marriage is a legitimate child of the mother and the man to whom she is married. Thus, a putative father is generally not allowed to intervene in a dissolution of marriage proceeding to assert paternity over the objection of the husband. Likewise, he will generally not be able to successfully file an action for paternity over the objection of the husband under Ch. 742.21 However, it may be narrowly possible for the putative father to establish paternity even over the objection of the husband through a Ch. 742 proceeding or a declaratory judgment action, if the putative father is able to prove that he has established a relationship with the child and that the husband has been remiss in fulfilling his role as a father.

Since 1997, however, there has been a difference in Florida between “legitimacy” and “paternity.” Those two concepts are “related, but nevertheless separate and distinct concepts.” As the result of Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla. 1997), a child can be a legitimate child of a marriage, but have no right of support from the man to whom the mother was married on the date of birth. A husband can deny paternity in a dissolution of marriage proceeding and avoid any duty of support. Although HRS v. Privette, 617 So. 2d 305, 309 (Fla. 1993) and some of its progeny have spoken of terminating the parental rights of the husband, other cases make it clear that the rights of a parent may not be terminated in any proceeding other than a termination of parental rights proceeding under Ch. 39 or Ch. 63.24

Parents cannot stipulate in a dissolution of marriage case that the husband is not the father of the wife’s then unborn child. Such an order is void, leaving open the possibility that the later-born child can petition for paternity and child support. Florida public policy and law are unequivocal in declaring that parents cannot barter away the interests of their children or exclude the courts from reviewing terms or conditions of custody, visitation, or support. An order based on a stipulation between the parties providing that the husband has surrendered and waived all parental rights in return for the wife’s waiver of entitlement to child support is void for lack of jurisdiction in that it attempts to sever parental rights without invoking any of the statutory provisions governing termination of parental rights.

A final judgment of dissolution of marriage is generally regarded as res judicata on the issue of paternity of the children who were conceived or born during the marriage. Fraudulent misrepresentation about biological paternity is intrinsic and not extrinsic fraud, thus, affecting the date for filing a motion for relief from judgment or action assailing the judgment. This outcome has been changed to the extent that Ch. 742 now allows disestablishment of paternity under some circumstances.

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Customer: replied 3 years ago.

Ok last question,


if a gay male willingly marries a straight woman under false pretenses, ..say to gain a child through the marriage and defraud the Marine Corps to receive BAH, for both the wife and the child, is that still considered to be a lawful marriage?

If this was just discovered, it is certainly grounds and a basis to try and obtain an annulment. Of course, the Judge is going to want to know your involvement with this, if any and how you came to realize what was happening. Also, why if you were married for 5 years and were only intimate once, that you would not address the issue with paternity at an earlier time.
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