Ex-Husband Wants To Dispute Paternity

STORMY · #1 08-22-2005, 10:24 PM

I have been divorced for almost 13 years and my x-husband thinks he is the father but he is not-I am pretty sure of this. We were married when she was conceived and we were divorced by the time she was 8 months old. Several people told me in the first few years that he did not think he is the father but he never confronted me or did anything about it. I was young and scared so I have never spoken the truth of my childs paternity. my x-husband is currently trying to get custody of my child. If I ask for a paternity test in court, what could happen? What could happen to me for keeping this secret all these years. I am not proud of it but I could really use some answers. Thanks

aaron · #2 08-23-2005, 12:42 PM

The court probably won't authorize a paternity test, and if your ex- wishes to continue to maintain his paternal relation the court is not likely to care about the result of a paternity test. Typically, courts hold that any question as to paternity should be resolved in the initial divorce proceedings, and subsequent challenges are barred by "res judicata" - a doctrine that says a court only decides a legal issue a single time, and that decision binds the parties in all future legal proceedings.

STORMY · #3 08-23-2005, 03:59 PM

Thank you for your replay. I had no idea that is what could happen. So you are telling me even if I go to court and say I have reason to believe he is not her father that they may not even allow a paternity test? How could they give full custody to a man that is not her biological father? Wouldn't the court ask for any info about the person that is her father and then make him pay child support?

aaron · #4 08-23-2005, 05:26 PM

Custody was awarded at the conclusion of your original divorce case. You raised no objection at that time, and chose not to make paternity the issue. The court will not look upon itself as giving custody rights to a non-parent - it will typically look upon that as your decision when you chose not to raise paternity at an earlier date.

There is a very strong presumption of paternity for children born within a marriage, and judges are very reluctant to delegitimize children.

STORMY · #5 08-23-2005, 05:36 PM

I have had sole custody of the child for almost 14 years. So you are telling me that my x-husband could very well get custody and there is nothing I can do just because I did not speak up. There has to be some law somewhere that gives me some rights also. I can not believe that just because I did not say anything that my x-husband would have legal rights when he is not the real father. My goal is not to remove him from her life but to prevent him from getting sole custody. Do you recommend that I do not even bring up paternity at all?

aaron · #6 08-23-2005, 05:44 PM

Your ex-husband is the father, and has been for the child's entire life. The other guy's a sperm donor.

STORMY · #7 08-23-2005, 05:59 PM

Point taken!! One other question-the whole reason this came up is my x-husband is triyng to get full custody because I am having some financial problems due to being laid off and I have been out of work for some time-my home is in forclosure, but I will be staying with my mother until I can get back on my feet. Does the court usually take custody away for those kind of reasons when she has lived with me her entire life? Does she have a say so at her age as to where she wants to live? Last question-thanks for yor help.

aaron · #8 08-24-2005, 07:56 AM

Quoting STORMY

I am having some financial problems due to being laid off and I have been out of work for some time-my home is in forclosure, but I will be staying with my mother until I can get back on my feet. Does the court usually take custody away for those kind of reasons when she has lived with me her entire life?

A court will consider the ability of a parent to provide a stable and appropriate home environment, and within that context would want to know the arrangement at your mother's house and would probably want to know what your longer-terrm plans are.

Quoting STORMY

Does she have a say so at her age as to where she wants to live?

Once a child is old enough to express a preference, a court will typically consider the child's preference among other factors when making a custody decision. It may be necessary, depending upon the state, for the parents to agree to have the child state a preference. Some states give the child's preference greater weight than others, particularly with older teens.