[lachambers@bellsouth.net]

My neice(living in Tennessee) separated from husband in Feb of 2004 with no sexual contact after this date. She got pregnant in November of 2004 by her boyfriend (now fiance`). Her divorce was final in Feb of 2005. Her daughter was born August 2005. The biological father (fiance`) was present at the birth. Since they weren't (are not) married the nurses would not allow him to sign or put his name on the birth certificate without a dna test. My niece was going to give the baby her last name (which changed in the final divorce decree, but she had not changed her social security card or drivers license to reflect this). The nurse told her she would have to bring her divorce papers in. When she took the divorce papers in, the nurse noticed she was legally married (although separated for 9 months) when the baby was conceived. Her divorce wasn't final until 3 months after the baby was conceived although her divorce was final by 6 months when the baby was born. The nurse told my niece she would use my niece's last name and list the father as unknown. When my niece got the birth certificate in the mail, it had the ex-husband's name as father and the baby has the ex-husband's last name. The ex-husband has no idea. The biological father has no problem with having a dna test proving his is the father. How does she remove the ex-husbands name without him knowing? The ex-husband, needless to say, did not sign the b/c. Is this not a clerical error made by the hospital?

[jojo4]

As she was still legally married, her husband (at the time) is the legal father of the child.

It should not be too difficult to disestablish paternity and then establish legal paternity with the correct father.

She should check with a TN family law atty to find the easiest solution.

Citing Tennessee code:

36-2-304. Presumption of parentage. —

(a) A man is rebuttably presumed to be the father of a child if:
(1) The man and the child's mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
(2) Before the child's birth, the man and the mother have attempted to marry each other in compliance with the law, although the attempted marriage is or could be declared illegal, void and voidable;
(3) After the child's birth, the man and the mother have married or attempted to marry each other in compliance with the law although such marriage is or could be declared illegal, void, or voidable; and:
(A) The man has acknowledged his paternity of the child in a writing filed under the putative father registry established by the department of children services, pursuant to § [COLOR=#0000ff]36-2-318[/COLOR]; or
(B) The man has consented in writing to be named the child's father on the birth certificate; or
(C) The man is obligated to support the child under a written voluntary promise or by court order;
(4) While the child is under the age of majority, the man receives the child into the man's home and openly holds the child out as the man's natural child; or
(5) Genetic tests have been administered as provided in § [COLOR=#0000ff]24-7-112[/COLOR], an exclusion has not occurred, and the test results show a statistical probability of parentage of ninety-five percent (95%) or greater.
(b) (1) Except as provided in subdivision (b)(2), a presumption under subsection (a) may be rebutted in an appropriate action.
(2) (A) If the mother was legally married and living with her husband at the time of conception and has remained together with that husband through the date a petition to establish parentage is filed and both the mother and the mother's husband file a sworn answer stating that the husband is the father of the child, any action seeking to establish parentage must be brought within twelve (12) months of the birth of the child. In the event that an action is dismissed based upon the filing of such a sworn answer, the husband and wife who filed such sworn answer shall be estopped to deny paternity in any future action.
(B) A petition to establish parentage may be brought under this part if a dismissal of a petition under the prior legitimization statutes was based upon the mother's marriage to another man at the time of conception or upon the petitioner's lack of standing. In such cases, the requirements of subdivision (b)(2)(A) requiring a petition to be filed within twelve (12) months of the birth of the child shall not apply. It is the intent of the general assembly that putative fathers who filed a cause of action under this chapter prior to the July 1, 1997, effective date of Acts 1997, ch. 477, and whose action was so dismissed, shall have an opportunity to prosecute a single cause of action under this part. Thus, the doctrines of res judicata and collateral estoppel shall not bar such new or pending action, nor shall any statute of limitation that may have run bar such new or pending action. It is the clear and unequivocal intent of the general assembly that this provision shall be applied retroactively to such petitions to establish parentage. No such retroactive application shall, however, abrogate the provisions of § [COLOR=#0000ff]36-1-122[/COLOR].
(3) The standard of proof in an action to rebut paternity shall be by preponderance of the evidence.
(4) In any case, except terminations of parental rights or adoptions under title [COLOR=#0000ff]36[/COLOR] or title [COLOR=#0000ff]37[/COLOR], in which the paternity of a child is at issue and an agreed order or divorce decree has been entered finding that an individual is not the parent of the child, the finding shall not be entitled to preclusive effect unless the finding was based upon scientific tests to determine parentage that excluded the individual from parentage of the child in question.
(c) All prior presumptions of parentage established by the previous paternity and legitimation statutes and cases are abolished.