Biological Father Fighting Legal Father for Paternity

My question involves paternity law for the State of: New York

The biological father of a child was not aware that he had a child until recently, when the mother contacted him. The mother of the child was pregnant and married a man who knew she was pregnant with another mans child. When the baby was born the husband was listed on the birth certificate. He has been acting as the father for 3 years. Now the mother and the husband are getting divorced and the biological father was informed that he has a 3 year old child. Both the biological father and the mother want the husband removed from the birth certificate and his rights removed to be replaced by the biological father. The husband, however, is fighting to keep his rights, not because he actually wants the child, but because he wants to mess with the mother. There is also a second child of the marriage. Some consultation with an attorney revealed that there is a law in place that basically states that the legal father cannot just be removed from his position, so the legal father very much has the upper hand at the moment, even though both biological parents are fighting against him. Are there any ways to fight this and win? What can be done to help build the biological fathers case? Do the courts take into consideration the fact that the biological father had no knowledge of the child and therefore no opportunity to be the legal father?

Legal Dad is legal Dad.

Disestablishing his paternity at this point may not be in the CHILD'S best interest (because after all, this IS about the child - correct?).

Mom - or putative bioDad - needs to speak with a local attorney.

There are a few other facts of the case that may make a difference. First, the legal father was emotionally abusive to the mother. Second, the legal father had stated to other people that he doesn't want anything to do with the child and had been ready to walk away from BOTH children and never have contact with them until circumstances suddenly changed and he decided to fight for custody. Third, during the period of time after the legal father had left the mother he rarely saw the children and contributed almost nohing financially. Fourth, the biological father is now living with the mother and the child is calling him daddy. Does any of that change anything? The biological parents truely believe that it is NOT in the childs best interest to know the legal father because of the way he treats the child. There is a fear of emotional abuse, but that is a very difficult thing to prove.

A claim of "emotional abuse" by mom doesn't in any way suggest that her husband is an inadequate father. I don't know anything about dad's alleged statements to third parties, but that's obviously not what he's telling the court now; the mother can discuss with her lawyer whether any of those statements would be admissible or would be helpful to her case. "Rarely" seeing the children is not the same as not seeing the children; contributing "almost nothing" financially is not the same as not contributing financially, and you've not indicated that any violation of a support order occurred. Attempting to manipulate the situation by having the child call the biological father "daddy" does not sound to me like something that will help mom - but if the legal father wants evidence that mom is trying to estrange the child from him, he may point to that. You've told us nothing about how the legal father treats the child, or why it's a matter of concern, but that's the type of concern courts routinely address in custody disputes and orders.

Mom was not trying to manipulate the situation in having the child call the biological father "daddy". The change from calling him by his name to calling him daddy occurred after the legal father had agreed to walk away and papers were starting to be drawn up. The child was asked if she wanted the biological father to be her daddy and when she said yes she began calling him such. The reason the way the legal father treats the child is a concern because he pays her no attention. No matter what he is doing it is more important than the child. He works long hours and when he comes home is not interested in interacting with her. The child is slightly difficult and throughout the marriage whenever the child misbehaved the response by the legal father was "I can't deal with her". He was a pot smoker as well and has only discontinued use for the court proceedings. Saying that there is no case here is very unhelpful. What can be done to help make a case, as that is whats best for the child?

the mother allowed a 3 yo child to choose who daddy is?

Sounds like the mother has as many problems as she is claiming the legal father has.

No, she did not allow a 3 year old child to choose. The legal father walked away and she had rekindled her relationship with the biological father. They are living together and since the legal father was no longer going to be in the picture and the biological father is going to be around permanently, she asked the child if she wants the guy to be daddy. Its was done to give the child a father figure and there wouldn't have been any complication if the legal father hadn't changed his mind all of a sudden. Does anyone have anything helpful to add?

Mom just did her child a grave disservice, but whatevs.

The child already HAS a father figure. She already HAS a father.

As I said in my first response, Mom should be speaking to an attorney. Biological dad might have to adopt his own child, and that's never a DIY project.

I do not have legal practice experience but I'd say everyone has a valid argument. However, as someone who found out about having a different biological father during my 20s, I side with cookiebabymedic. While the emotions and consequences that come along with divorce (or any end of a significant relationship, for that matter) are enough to bear, it's important to keep in mind that everything each party does needs to be about the child--not the parents' egos.

@Dogmatic, even though the child has a father, he/she will eventually find out. He/she will grow up feeling "off" or that something isn't right his/her entire life, asking questions that the parents will brush off. The parents, having years to let their anger subside, will feel guilty and ashamed to have held the truth from such an innocent person. And when the child does find out, facing the betrayal of all parents involved, there will be significant consequences. Just as many women and men have a biological desire to have children and families, many people who don't know their parents have a biological desire to find out who they are and where they come from.

@cookie, from a legal risk standpoint, this is something pretty relevant to a very recent Tennessee court reviewing a case where the non-biological father turned around and sued the mother for the child support he'd paid her for all the years until he found out the child was not his. So, in your case, if the parents do *not* fight to correct the paternity, they could face paternity fraud charges. The non-bio-dad sounds like someone who'd turn around later and challenge any request for child support. And the biological father would have no protection should he continue to raise his child. Since it is about the child, someone is going to have to pay support for this child's upbringing and education. Who is to be held accountable?

Anyway, this is a topic that means a lot to me. And many others. One out of ten children is not the genetic offspring of the man officially recognized as the husband. So, maybe this is an opportunity to set an example. To read the article I mentioned, feel free to see here: http://mydnadad.com/2011/06/16/tenne...ternity-fraud/

Quote:

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Quoting mydnadad

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@Dogmatic, even though the child has a father, he/she will eventually find out. He/she will grow up feeling "off" or that something isn't right his/her entire life, asking questions that the parents will brush off. The parents, having years to let their anger subside, will feel guilty and ashamed to have held the truth from such an innocent person. And when the child does find out, facing the betrayal of all parents involved, there will be significant consequences. Just as many women and men have a biological desire to have children and families, many people who don't know their parents have a biological desire to find out who they are and where they come from.

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And many adopted children NEVER feel different or that something is "off". Millions go through their entire lives completely oblivious to the fact that they're adopted - and it often never occurs to them that their parent/s might not be related biologically.

I'm sure you wouldn't be trying to speak for everyone, right? :)