Legally Married but Husband Not Father

[mmjohnso]

My question involves paternity law for the State of: California

I was legally married at the time my child was born however the child is not his and we are now officially going through the divorce process. I am aware that under CA law the child is considered my legal husband's unless I can establish paternity with the actual father within the first two years (my child is 5 months old). The only name on the childs birth certificate is mine.

My goal is to establish paternity with the actual father and have him relinquish his parental rights as he has only seen the child the first day he was born. In reading several posts in this forum I know that even if he relinquishes his rights he may still have to pay child support. I paid for an outside, court admissible DNA test for the actual father to submit to so that we did not have to go through the court system (he did not want to be involved and I do not want child support from him) however he has not been cooperative and has failed to take the test. I am aware my next option is that I have to take him to court.

My questions are:
1. If he submits to the DNA test willingly and paternity is established do we still have to go to court to prove that my husband is not the father?
2. If he will not relinquish his paternal rights can I get his rights revoked because he is unfit? (several DUI's, time in jail, abandoment)
3. In my will, if I list my mother to receive custody of my child should anything happen to me would that be legal or would the actual father get custody even though he hasn't been involved in the child's life?
4. If the actual father and I agree that he pay NO child support and have no visitation would the court accept that?

This is a complicated one and I know I should hire a lawyer but frankly I don't have the money. My main goal is to be sure that my husband is not responsible for the child and that the actual father not have rights to my child in case something were to happen to me.

Thank you for any advice you can provide.

[Mr. Knowitall]

You're divorcing. You should resolve the issue of non-parternity, with the help of your lawyers, as part of the divorce process. If you disestablish paternity with your spouse, the putative father will not have any parental rights unless he establishes his paternity.

You can't bequeath a child like a piece of property. You can designate a guardian, and can explain why you would prefer your guardian to have custody over the biological father.

[babyontheway]

Heard back from my attorney. Said this is a non-issue. More than likely, the divorce will occur before the birth anyhow. Either way, date of stated separation was months before conception. The biological father will be present for the birth, and we will not have issues with his name on the birth certificate. I think how this is handled varies from state to state.

[mmjohnso]

I am confused by the post from babyontheway - are you referring to your own post or mine? My son has already been born before I filed for divorce and the biological father was not present for the birth nor is he on the birth certificate.

MrKnowitall - The divorce paperwork is already filed and the legal help guy (sorry can't recall technical term) for the military advised me since the child is not his that we not include it in the divorce paperwork at all. Should this have not been the case? Thanks for the info on the will and choosing a guardian and my reasoning why.

[babyontheway]

mm, my post was about my own situation. Posted before I got info from my attorney. I believe each state my dictate this sort of thing. where I am, all that needs to happen is the bio father present for the birth, his name goes on the b.c. Baby was conceived after my separation, but who the heck knows when the divorce will happen. No way would the ex even think the baby is his. Waiting to get more explaination from my attorney (attorney said it's not a problem to have bio father on the certificate, but she'd discuss w/me further when we have our next meeting). The sad part is, if the ex where not trying to squeeze money out of me, our divorce would have already been filed, and probably done by now. : (