I am in the middle of a divorce. The father of my children told our oldest daughter out of spite for me that he may not be her father. This is true. He has known this since the day I told him I was pregnant. When she was born he said he wanted to sign the birth certificate and not take the dna test. Now, we are fighting for custody and I am afraid that I will lose her. She wants the test done to know who her father is. My question is can he possibly get custody of a child if she isn't biologically his if the other possible father wants to be in her life as well? The other possible father was under the impression that we the test done and that she was my husbands.

First not knowing where this is happening at it would be hard to state what might happen. Another thing is that in many states after a given time there can be no challenge.

To answer the question of can he get custody and not be the biological father.. Yes.

By signing the birth certificate he legally acknowledged paternity. For 9 years he has acted as her father. The likelihood of challenging paternity at this late date is small, though it does depend on local laws.

The current man on the birth certificate is the legal father, after 9 years few locations will allow this to be changed. The real bio father may be able to challenge it but most places would not allow it.

But yes in most locations, the legal father, one on the birth certificate, even if not bio father, can have right to custody

The laws vary from state to state. It depends on the state which has jurisdiction.

Now what if we get the test and the other man is proven the father and he wants to be in her life? My daughter has already said that if he is the father she wants to know him. Could the courts look at him telling her as bad since she is already going through so much? Putting her in more emotional distress? We have been going through divorce since may and now are in an ugly custody battle.

WHERE ARE YOU?

As every other person answering has said, the answer COMPLETELY depends on where you are located.

Did you not read what all of us said, that local laws are different. In some areas, there is very limited window where paternity can't be challenged. In others it can be challenged up until the child is 18. Without knowing where you are, its impossible to know what laws apply. If you have an attorney, then ask him (or her).

It is possible that the bio father can get at least visitation. I doubt seriously if just telling her he isn't her father is going to affect how the courts rule.

Ohio

Potential bio dad was lied to. I wonder if he has a case if he is the bio dad... not just for contact, but possibly something else?

Please tell us that your concern is ONLY for your daughter, and not cloaking a desire to ruin your husband's life, despite his awful remark to her. She is possibly about to be torn not just 2 ways but 3. It took two to tango and get to this point.

My daughters welfare and happiness has always been important to me. He has done things that I keep from the kids because I want to protect them. We were not married when she was born. I am not out to ruin his life. I have been civil and fair and have not asked for anything. The main reason he told her is because I requested that he be drug tested and he failed. I am upset that he told her after all that she has been through already

3111.03 Presumption of paternity.
2 (B) A presumption that arises under this section can only be rebutted by clear and convincing evidence that includes the results of genetic testing, except that a presumption that is conclusive as provided in division (A) of section 3111.95 or division (B) of section 3111.97 of the Revised Code cannot be rebutted. An acknowledgment of paternity that becomes final under section 2151.232, 3111.25, or 3111.821 of the Revised Code is not a presumption and shall be considered a final and enforceable determination of paternity unless the acknowledgment is rescinded under section 3111.28 or 3119.962 of the Revised Code. If two or more conflicting presumptions arise under this section, the court shall determine, based upon logic and policy considerations, which presumption controls.


3111.04 Standing to bring paternity action.

(A) An action to determine the existence or nonexistence of the father and child relationship may be brought by the child or the child’s personal representative, the child’s mother or her personal representative, a man alleged or alleging himself to be the child’s father, the child support enforcement agency of the county in which the child resides if the child’s mother, father, or alleged father is a recipient of public assistance or of services under Title IV-D of the “Social Security Act,” 88 Stat. 2351 (1975), 42 U.S.C.A. 651, as amended, or the alleged father’s personal representative.

(B) An agreement does not bar an action under this section.

3111.05 Statute of limitations.

An action to determine the existence or nonexistence of the father and child relationship may not be brought later than five years after the child reaches the age of eighteen. Neither section 3111.04 of the Revised Code nor this section extends the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by Chapter 2105. 2107. 2113. 2117. or 2123. Of the Revised Code.

So the law as cited by GV70 an action to rebut paternity until your daughter reaches 23. Such action can be bought by any of the parties.