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  1. #1
    Join Date
    Dec 2010
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    Question Process for Husband to Become Legal Father of Child from Another During the Marriage

    My question involves paternity law for the State of: Texas

    My husband and I were separated for about 7 months - toward the end of that time he moved out of state. Once he was settled and both of us were working we were going to split the cost of the divorce and make a clean break. However, after he left I began dating someone who quickly proved to be quite unstable emotionally and pressuring me to move quickly, I distanced myself from that person and soon found of that I was pregnant. Later the man implied that he had purposely planned the pregnancy and went on to explain his want for a family because of the loss of a previous child and that he thought it would bring us together. None the less I cut all ties with him immediately, although he continued to aggressively pursue me through the entire pregnancy. He begged to be involved with the child once it was born, I reluctantly agreed (because of actions as well as his mental state and legal troubles) but it was all to be very closely monitored..meaning he could only see the child while I was present. He saw the child only a few times briefly and stopped visitation all together when I would not allow him to leave with the baby. (He had a revoked license, no place to live and unpaid parking tickets and a warrant out). As far as the divorce went, everything was put on hold because in Texas you can not finalize a divorce if the woman is pregnant. You have to wait until the child is born and paternity is determined.

    To cut this long story short. He has not been seen or heard from the last year and a half and since my husband and I have made amends. He has been there since the birth of the child, considers him his own and wants full responsibility. He is legally the father since were never divorced but is not the biological father. No father was ever stated on the birth certificate. All that is needed to add him to the birth certificate and have the child take his name is a notarized application for a new birth certificate based on parentage and a copy of our marriage license.

    My questions is...

    If I do this and in the future the biological father decides to come back and fight for visitation rights can I face legal trouble? If so, what steps do I need to take to prevent any legal issues and rest easy that the biological father will not have ANY rights to the child?


    Note* I no longer have contact with this man and have no idea where he is currently residing. The last I heard he was planning to move to another state.

  2. #2
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    Default Re: Process for Husband to Become Legal Father of Child from Another During the Marri

    Presumably your divorce judgment reflects the fact that your husband is not the father of this child?

    The procedure you're looking for is called step-parent adoption.

  3. #3
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    Smile Re: Process for Husband to Become Legal Father of Child from Another During the Marri

    Quote Quoting Mr. Knowitall
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    Presumably your divorce judgment reflects the fact that your husband is not the father of this child?

    The procedure you're looking for is called step-parent adoption.

    Thank you for your response but I believe you misunderstood completely. I am married. I have always been married. We were seperated at the time the preganancy occured which put the divorce on hold because of Texas law regarding finalizing divorce while pregnant.

    So..No divorce ever took place because my husband and I decided to stay together. The father of the child is not in the picture. Again, the pregnancy happened with another man while my husband and I were seperated.

  4. #4
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    Default Re: Process for Husband to Become Legal Father of Child from Another During the Marri

    Sorry for misunderstanding your factual scenario.

    Nonetheless, the procedure you're looking for is called step-parent adoption. Texas law won't prevent a paternity claim by bio dad if you execute a fraudulent affidavit of parentage.

  5. #5
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    Default Re: Process for Husband to Become Legal Father of Child from Another During the Marri

    Quote Quoting Mr. Knowitall
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    Sorry for misunderstanding your factual scenario.

    Nonetheless, the procedure you're looking for is called step-parent adoption. Texas law won't prevent a paternity claim by bio dad if you execute a fraudulent affidavit of parentage.



    Is it fraud?

    They were married when the child was conceived and born, and remain married - does this not make husband the legal father regardless of biology?

    (Not that this in itself would prevent a challenge to paternity in the future)

  6. #6
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    Default Re: Process for Husband to Become Legal Father of Child from Another During the Marri

    To get a birth certificate, per form VS-166 they must provide (1) a certified copy of a court decree establishing parentage, (2) a properly completed Acknowledgment of Paternity (form VS-159.1), or (3) "certified copy of the BIOLOGICAL parents’ marriage license", emphasis in original.

  7. #7
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    Default Re: Process for Husband to Become Legal Father of Child from Another During the Marri

    Quote Quoting Dogmatique
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    Is it fraud?

    They were married when the child was conceived and born, and remain married - does this not make husband the legal father regardless of biology?

    (Not that this in itself would prevent a challenge to paternity in the future)


    That was exactly my next question and really my entire point. Since he is 100% the legal father, is it really fraud to have him on the birth certificate??

    Q.
    If a child is born to a wife who had the baby during an extramarital affair, does that child legally belong to the husband or the boyfriend? No paternity tests have been done, and the husband and wife may now be separated. No father has been named on the baby's birth certificate.



    -- Shari L.

    A.
    You've asked a very interesting question, because the answer is the opposite of what most non-lawyers would say is logical.

    A child born at any time during the marriage prior to the entry of a final divorce decree is legally presumed to be the child of the husband. This is true even if the parties were factually separated and had already started divorce proceedings at the time of the pregnancy or birth. However, this is a rebuttable presumption that may be challenged by the husband (or even the wife); the boyfriend's ability to assert legal father status is much more limited. At a certain point, biology may not matter in a court of law, particularly as more time passes and/or the husband assumes in practice the role of the baby's father.

    If any of the parties wants to argue that paternity (i.e., legal father status) of the baby should be with someone other than the husband, a paternity action would need to be filed in court.

    In these situations, a case should be filed as soon as possible. The Court will most likely appoint a guardian ad litem (GAL) to represent the child's best interests and to conduct an investigation to file a report and recommendation with the judge. The GAL may also recommend to the Court whether blood/genetic testing should be allowed.



    I Found this Q&A in archive and it helps a bit. I just want to post all my findings in case it helps someone looking for similar information.

    If anyone has any more insight on whether or not it can be considered FRAUD and what legal problems, if any, I could face by placing my husband, the legal father, on the birth certificate.. please let me know.

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