QUESTION
What can I do if my rights to a child might be taken away from me?
Asked on Sep 17th, 2011 on Child Custody - Oregon
More details to this question:
I married a women who was pregnant with the possibility of that child not being mine. I am on the birth certificate, pay child support, and have visitation since the divorce. Recently, things have become very rocky between us. She does not want me to have any part of my daughter's life. After refusing to take a paternity test, she got the other man she had been involved with to take one. If it turns out my daughter is his biological child will I lose my rights and visitation? How do I stop that from happening? I have been her dad for five years, I don't want to lose my baby.
12 ANSWERS
Steven D. Dunnings
If paternity was not contested during the divorce, it can not be raised at a later date. The time to challenge paternity was during the divorce.
Answered on Sep 20th, 2011 at 2:09 PM
Divorce & Separation Attorney serving Menasha, WI
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Petit & Dommershausen, S.C.
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Get an attorney. It is unlikely that the court would find you not to be the father even if you are not biologically the dad.
Answered on Sep 20th, 2011 at 9:27 AM
Since you were married at the time of the birth, are legally recognized as the father, you have the rights. You simply need to object to any court procedures she attempts to undo that. As long as you participate and object, your legal rights should remain.
Answered on Sep 20th, 2011 at 9:16 AM
Patricia C. Van Haren
You should immediately contact a family law attorney who is experienced with contested paternity actions. Since you were married to the mother, took the child into the home and you are on the birth certificate, you are the presumed father of the child. Your rights will be superior to any rights which are asserted by the other person. If you have been through the divorce process and there are court orders in place which show that you have custodial rights to the child, it will be even more difficult for your wife to set aside the paternity. There have been numerous cases that are similar to yours in California and the law is fairly clear that you will maintain your status the natural father of your child.
Answered on Sep 20th, 2011 at 8:54 AM
Family Law Attorney serving Petaluma, CA
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Law Office of Erin Farley
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There are three forms of legally recognized fatherhood in California: 1. A biologocal connection; 2. Being married to mom when the child is born; and, 3. Receiving the child into your home and holding the child out as your own ("putative father"). From the facts you have stated, you are this child's legal father under both #2 and #3. Also, I imagine your divorce judgment and custody agreement name you as your child's dad. The court will be loathe to disrupt the bond that has already been formed between you and your daughter. Regardless of how the paternity test comes back, nothing will happen unless and until this other guy tries to file for parentage. I urge you to consult with an attorney if any action arises.
Answered on Sep 20th, 2011 at 7:42 AM
Divorce Attorney serving Little Rock, AR
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Law Office of Kathryn L. Hudson
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You have established legal paternity with the child by birth certificate and marriage, the court will not look favorably on your wife having essentially perpetrating a fraud on the court. There is something in Arkansas called "in loco parentis" that protects people that have stood in the place of a parent from being removed from the child's life. The court will look to what is in the child's best interest and if she has established a parental bond with you the court will not likely want to disturb that. I would retain an attorney to fight for your parental rights.
Answered on Sep 19th, 2011 at 8:34 PM
Gary Moore
Actually, you may be entitled to parental rights without being the biological father, with all the obligations of same.
Answered on Sep 19th, 2011 at 4:16 PM
Medical Malpractice Attorney serving Clermont, FL
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Joanna Mitchell & Associates, P.A.
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Even if you are not the biological father, if the child was a child of the marriage, then you are the legal and putative father. Therefore, you have rights and the unmarried biological father does not (unless you choose to give them to him). You should consult with an attorney immediately, especially if you are served with papers.
Answered on Sep 19th, 2011 at 4:15 PM
David J. Reed
That is a tough situation and it is possible you could lose rights; it really depends on the biological father and whether he wishes to enforce his rights. If he is looking to become part of the child's life, then you could essentially be "boxed out". If he isn't I would think you have a good argument to retain legal rights and visitation. You need to contact counsel.
Answered on Sep 19th, 2011 at 4:12 PM
Mediation Attorney serving Bloomfield, NJ
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Cassandra T. Savoy, PC
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You will not likely lose your rights. There are very few "do over’s" when it comes to parenting. Even if it is determined that you are not the biological father, the courts could rule that you stood, "in loco parentis" which means in the place of the parent. Moreover, she will be lucky if she can get a judge to take notice of the DNA test if she does not have a court order in advance of having the test administered.
Answered on Sep 19th, 2011 at 4:07 PM
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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Without much more information it is impossible to completely answer your question and you should consult an attorney who can evaluate the facts in accordance with Colorado law. Generally, if it has been 5 years since a divorce case confirmed your parenting rights based on the presumption that comes from birth during the marriage, it will be difficult for anyone to overturn that ruling despite any DNA results. If the mother successfully obtains DNA results that show someone else is the biological father, that man will have to take the initiative to begin legal proceedings to overturn the presumptions that you are the child's legal father. Until he does so successfully, your parental rights cannot be changed by anyone.
Answered on Sep 19th, 2011 at 4:06 PM
General Civil Trial Practice Attorney serving Beaverton, OR
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Vincent J. Bernabei, LLC
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You are the child's legal father. You will not lose your rights and visitation.
Answered on Sep 19th, 2011 at 4:05 PM