Married Woman Pregnant by Someone Else

[RJS]

My question involves paternity law for the State of: Iowa

My husband and I just celebrated our 8th anniversary, but it may not have ever happened. He and I were having MAJOR marital issues over his work, our (lack of) sex life, frequent moving, and the effect it had on our daughter, then 2. I was desperate for companionship, and was left to the internet to find friends (at the time, I felt I couldn't trust anyone in our area due to my husband's job, everyone I had trusted as a friend had used what I said against me and my husband - a fact we're dealing with legally at this time). I connected with someone I thought I could trust, and being weak, frustrated, and feeling very much alone at the time I got into a relationship that took me out of the marriage for a few months.

Needless to say, it was all a big mis-communication between my husband and I, and once we started communicating and being honest, he realized I was miserable where I was, not seeing my baby girl, that missing her 3rd birthday had almost killed me, and that I'd stayed away so long because he refused to talk to me and hear that I wanted him and not this other man.

I found out I was pregnant about a month before packing my things up to move home. I debated stopping at a hospital I knew did abortions on the way there. I considered not telling my husband about any of this, having it "taken care of" and then claiming miscarriage to the biological father. In the end, my religious beliefs and my desire to have more children (though my husband may not be able to conceive any more) won out, regardless of the paternity. I had my parents to take me in if my husband threw me out. I told him, he cried more at the thought I almost aborted the baby than knowing it wasn't his. From my first night home, he's claimed this child inside me and is a WONDERFUL daddy to our daughter so I have no doubts there.

The sticky part comes now. Iowa law assumes husband=father. The biological father of this baby is refusing to give up "paternal rights" to my husband - mostly out of spite, but also because I'm not the first woman he's seduced into getting pregnant then losing because of his attitude, temper, and inability to find and keep steady supportive work to establish a family. His son with his last girlfriend lives with her and her fiancé, and though he has the legal ability to visitation he never goes to see him and can't pay the state-mandated child support amount. He's still virtually unemployed to my knowledge, lives with his mom, and complains incessantly about fathering two children he'll never see - so he's fighting me through letters and e-mail. While I'd love to see him pay for my medical procedures and give us money for the raising and care of the baby, It's not worth the struggle with someone so childish and stubborn - and I probably wouldn't see a penny anyway.

I know I was foolish to get into this, but I was married young and felt I'd missed out on certain things because of my husband's career choice. We've both grown up a lot, but are a bit afraid that even though Iowa law dictates my husband is the legal father that this man will find a way (or a sneaky cheap lawyer) to force a paternity test and file for rights - even though there''s no way he can support this child - he can't (and won't, doesn't want to, resents his ex for forcing him to pay child support) give anything to this child my husband can give. We've got a home that's in our names, two great sets of grandparents, a wonderful small community to raise the children in, great schools, an awesome church... the list goes on.

Anyone knowing if I need to do anything pre-birth to prevent issues, or if there can even BE issues of paternity between married couples in Iowa, please let me know. I'd also appreciate any information on the birth certificate - I'm having my husband on it, as his legal rights say that's how it should be even if it's not biological...

Thanks in advance!

[LawResearcherMissy]

The biological father of this baby is refusing to give up "paternal rights" to my husband

Until paternity is established through the courts, the biological father doesn't HAVE any rights. As far as the law is concerned, he's about as much the father of the child as my toe lint is.

In other words, legally, he isn't. He's a legal nobody.

He can try to sue to establish paternity, but if your husband has opted to claim the child and you are both objecting to his involvement, he's got a hard row to hoe. The law says that your husband is the father, full stop.

[Mr. Knowitall]

If you don't want this guy to have visitation rights, you need to ignore him and see what (if anything) he does. If he wishes, he may attempt to establish paternity and get visitation rights (and a child support obligation). If he waits too long to bring his claim, and has no relationship with the child, you can attempt to argue that it was waived by his delay.

In Callender v. Skiles, 591 N.W.2d 182, 192 (Iowa 1999), our supreme court found that a putative father of a child with an established father may have standing to challenge paternity under the Due Process Clause of the Iowa Constitution. It stated that

[a]lthough we recognize a right for [the putative father] to petition the court to challenge paternity in this case, we also recognize this right can be lost by waiver, which may be the threshold question to consider before addressing paternity. If the challenge is not a serious and timely expression of a meaningful desire to establish parenting responsibility, it may be lost.

Callender, 591 N.W.2d at 192. The court left it to the district court to determine whether the principles of waiver preclude a challenge in each particular case. Id. The court recognized time to be a critical element of this inquiry, as well as the efforts to establish a relationship. Id

[mmmagique]

In many states, as Missy said, if the husband claims the child, a claim of paternity by someone else will not even be entertained by the courts. It looks as if Iowa was a bit torn on the issue, but has made the decision to allow the bio-father to attempt to establish paternity.

As you can see here, you may have a fight on your hands.

"The Supreme Court of Iowa came to the opposite conclusion in Callender v. Skiles, 591 N.W.2d 182 (Iowa, 1999). In that case, the mother was separated from her husband at the time of conception, although husband and wife reconciled and were once again cohabiting when the child was born. The husband assumed responsibility for the child, and began to raise her as his own. Six months later, the child's natural father filed an application to establish paternity, visitation, custody and child support. Although DNA testing showed that the husband was not the child's biological father, the trial court granted the husband's motion to dismiss the application, on the ground that the biological father lacked standing to challenge the husband's paternity, under Iowa's paternity statute. The Supreme Court of Iowa reversed, finding that the statutory provision violated the biological father's constitutional due process right, because the father had a protected "liberty" interest in establishing a parental relationship with his child. Similarly, a Minnesota court found that a man had standing to seek to establish his paternity through genetic testing, based on a showing that he had access to the mother at the probable time of conception, Witso v. Overby, 609 N.W.2d 618 (Minn. Ct. App. 2000)."

This was found here: http://www.acf.hhs.gov/programs/cse/...tion/ch04.html

Perhaps you should quickly move to another state (like Ky!) which always assumes the husband as dad...

[RJS]

Thank you so much to all who have commented so far!

I truly appreciate your research and advice, thoughts and warnings. All seem to be things that have gone through my mind the last few months and it's nice to know I'm not just a raving lunatic preggo woman I do still have a few concerns, but know now that they are going to be less challenging than I originally thought.

First, he *thinks* he's quite intelligent, but lacks the formal education and legal thought process to actually see his "goals" realized where this baby is concerned. Second, he has no established connections to his first-born son, though legally he has all the rights to visitation whenever he wishes and still has not visited in over a year. He expects the boy's mother to go more than halfway in this, when he gives little-to-no child support due to his refusal to get a higher-paying job. He has the qualifications and work history to prove he can earn a good chunk of money, but every time he finds a decent job and gets established, the state finds out he's earning more there than at the low-paying job he keeps consistently (a substitute school bus driver, making as little as $20 a day on the days he is asked to work, pre-tax) and when they start garnishing is better job's paychecks he quits. And then complains over and over how he has no money!

Both his first ex and I have valid claims to child support, but since I have a husband that can help take care of this addition to the family and she doesn't, I refuse to fight for money from a man that blatantly refuses and complains about everyone else's lack of support in his fathering skills when he obviously doesn't have any! She deserves and needs the money more than we do, and had I known all of the details of this issue before I got involved, I would have run far far away before I got into this situation at all!

Besides, I have a REALLY great lawyer that will find every shred of evidence against this man and bring him to his knees, figuratively. I am no longer worried about this case. I won't feel safe and sound until I know for sure that his chances have been declined by every level of court system he tries to go to, but I now feel my chances are even stronger than when I originally posted this question. Our lawyers response to this man's past history of parental responsibility was "Oh, this is gonna be a walk in the park" with a grin He's quite the "Matlock" (for all those that remember Andy Griffith's funny show about the cunning southern lawyer that's so good at finding just the right evidence and presenting it in such a way that it cracks the true guilty party). Keep me in your thoughts, and if you run across any other cases or situations like mine please post a reply. I will check back periodically, and will post if anything comes out of this situation once the baby is born (Due in late December/first week in January). If you're religious, feel free to pray to the god of your choice for the best interest of this precious little miracle girl in me.

Thanks again to those that searched and posted, and thanks in advance to anyone finding more information in the future.

[FLLJ]

I am in the SAME situation but I live in Florida. I had a one night affair and I am now pregnant. The man I had the affair with is 'DEMANDING' that I get a paternity. Does he have any legal right to make me? Does it have to be done before the baby is born? I should mention that I am married and my husband is aware of my very large mistake. This other man is also married with 2 children of his own. I'm sure the baby is my husbands but the other man won't let up. Can you please help me?

[Patty2222]

FLLJ,

He has to go to court and file for paternity, then he has to get a court order for you to submit the baby to DNA testing.

The thing of it is with both of you. The court always has the option of deciding what is in the child's "best interest" and a dead beat opposed to a husband and wife has a tough road to hoe. Now I was raped and became pregnant due to the rape and the stalker/rapist (who while stalking me said he wanted to make me the mother of his children - and after the child was born called to tell me that we were now "tied" together forever - talk about creepy.) Anyway, he came after the child through the courts and since I was not married it made everything just horrible for me. I finally won out and his rights were removed - but that was a pure miracle from God - because he had every right to the child because he supplied the sperm. And he would have used the child to continue stalking me and emotionally and who knows maybe even physically harm the child to keep control of me.

As Dr. Laura says - if you don't want to make a baby with someone - do not sleep with them. But you two are human and nature sometimes takes over.

I wish you both the best of luck and keep your marriages strong - the odds will be in your favor - although - you can never second guess our judicial system and these wacko judges.

[distressedmom]

What may get wierd in both of your circumstances is if your marriages ever were to end in divorce would your husbands still claim paternity and be willing to pay child support.