Paying Child Support for 10 Years, but DNA Test Excludes Paternity

notsostepmom · #1 08-26-2007, 09:36 PM

The subject is basically that. My husband has been paying child support for 10 years. He had a one night stand with a woman (before we met--AND wore a condom), and a few months later she calls and says she's pregnant.

He asked for a paternity test, a couple months after the child was born, and the mother flipped out that he even asked and my husband backed off (WRONG MOVE) and never brought it up again, though he's always wondered.

So, here it is, 10 years later and the child came for a visit, and I took it upon myself to do an at-home DNA test on her and my husband. It came back that my husband is not the father.

He confronted the mother (who said there's no way he's not the dad) and she wants another test done.

My question is, if this 2nd test proves he is not the father, do we have to still pay child support??

He/we have no intention of cutting her out of our lives, she can believe until the day she dies that my husband is her father, but the financial burden has been so hard on us. she can still visit, we'll call, presents, ect., but if it's not his, why in the world should we continue to pay?

Looking for anyone who knows. The child lives in Virginia. We're in another state. I know it depends on where the child lives.

Also, is there any way we can sue the mother for fraud?

Thanks!!

aaron · #2 08-26-2007, 09:42 PM

How was he legally established to be the child's father, and in what state?

notsostepmom · #3 08-26-2007, 09:55 PM

His name is on the birth certificate. I did some research and asked if he signed that form, I think it's called Acknowledgement of Paternity, and he said he couldn't remember. He was 19 at the time. I'm assuming he signed it.

Child was born and lives in VA. Everything was/has been done in Virginia. Thanks!!

aaron · #4 08-26-2007, 09:59 PM

It appears he can petition for relief:

Quoting Virginia Code § 20-49.10. Relief from legal determination of paternity.

An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The petitioner shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for relief from a determination of paternity, but only from the date that notice of the petition was served on the nonfiling party.

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

notsostepmom · #5 08-27-2007, 07:36 AM

That helps a lot. Thanks! Makes me feel a lot better.

notsostepmom · #6 08-28-2007, 07:22 PM

Okay, so really stupid question, but I've never gone to court or petitioned anything...how do we petition the court? Do we need to have a lawyer? If we can do it on our own, who do we call?

aaron · #7 08-29-2007, 05:47 AM

You can do it on your own, but if you have difficulty figuring things like this out (and it can be very difficult the first time) it makes sense to at least try to find a lawyer or paralegal service which can draft your legal documents, and probably to have a lawyer represent you. This type of petition should be pretty straightforward for any firm which practices family law.

moburkes · #8 08-29-2007, 07:29 AM

Don't forget too, that the money he'll save on child support could be used to pay the lawyer's fees, and those fees will eventually be paid off.

Just Breath · #9 08-29-2007, 12:50 PM

However....be careful what you ask for. If you challenge paternity and the court determines that your husband is NOT the legal father of this child any longer....you will not only be released from the obligation to pay support to the child's mother....but your husband will also no longer have any rights to visitation or custody of the child.

You can't have your cake and eat it too.

notsostepmom · #10 08-30-2007, 09:54 AM

That won't be much of a problem. We only see her once a year and they only talk on the phone maybe once a month. There isn't much of a "relationship" to begin with. The only thing that's been consistent in 10 years is the $500/month child support.

If her mother cuts off all ties with us, it'll be much more detrimental to her daughter than to my husband. And even though I can't stand this woman, she is a good mother, and I don't think she'd do that to her daughter, but again, if she does, I don't think my husband would lose much sleep. The mother has limited the time they've spent together for 10 years, so there's just not much of a relationship that needs to be saved.