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trickeddad · Jul 18, 2011, 01:42 PM

I recently did paternity test on son and found out I am not the father. I did the paternity test because I found out wife was talking to first HS boyfriend behind my back. Turns out she had been doing this our entire marriage. Please, no comments on how stupid I was for not figuring this out - I have had enough pain from this since I found out. I am only seeking LEGAL position answers.

So, I highly suspect that this guy is the father of the 8 year old boy I had thought was my biological son. I know for certain now I am not his biological father. Is there any legal remedy where I can get real father to pay for his child? The boy doesn't know any of this, but this has split my marriage up and I want to know what legal actions I may be able to take.

joypulv · Jul 18, 2011, 01:51 PM

Were you married to the mother at the time of his birth, and listed as his father, what state are you in, and what is your marital status now?

trickeddad · Jul 18, 2011, 01:58 PM

Yes I was married to mother at time of birth and yes I am listed as the father. I am in CA and am currently still married to the mother.

joypulv · Jul 18, 2011, 02:59 PM

You can't haul your suspect in for DNA testing, so your options are to find out if he is willing, or to get a divorce and add your test results to the settlement terms. Then your ex can petition to get his DNA.

The third option is to swallow your pride and keep this all under wraps for your son's sake, the son who knows you as dad. I'm not suggesting in any way that you have been callous in regard to his well being, as you have said that he knows nothing (as far as you know). Tough situation.

You and your wife could try counseling first, or mediation.

ScottGem · Jul 18, 2011, 03:19 PM

Originally Posted by trickeddad

I am only seeking LEGAL position answers.

First, please do not presume to dictate who can respond or how. While we have guidelines about answers in the legal forms, as long as posts meet those guidelines, they are valid. If you feel a response violates our rules, report it

You are the child's legal father. Under CA law, I believe the window of time (see Challenging Paternity Judgments | Time Limitations) may have past for you to challenge paternity.

Even if you were to successfully challenge paternity, you could not get support from the bio father. If you were to leave the mother, she might be able to get support, if the bio father is declared the legal father.

Synnen · Jul 18, 2011, 03:36 PM

Please think of how this will affect your SON, as well.

HE doesn't deserve to be abandoned by the only father he knows just because you're unhappy with your wife.

In addition, you are past the time-frame where paternity COULD be challenged.

You can, of course, file for full physical custody and get child support from your wife after the divorce, if that is what you want--but you can't get child support for a child that is legally yours from a guy that just happens to be biologically related.

trickeddad · Jul 18, 2011, 03:45 PM

Joy - thank you for the helpful input. I know I am in a tough position as far as the law is concerned. The law just doesn't address these types of situations. I can tell you there is a very high emotional cost. I know the law can't really address that. I was hoping that maybe the financial / legal responsibility aspect would somehow be addressed, but I am starting to find out that it isn't. The law protects one of two victims the child. I get that. But, I am the victim of a huge deception that not only has emotional cost, but also financial cost as well.

Scott - you inferred my post wrong. There was no intent on my part to dictate anything. I made a request for legal comments and also to refrain from any opinions on my situation. Maybe next time you should ask if you are not sure instead of assuming my intent. Disrespectful judegments don't get any of us anywhere. In any case, you seem to echo what Joy has indicated. I can try to make it a settlement term and see where that goes.

This is one of those situations where you can't imagine the grieving from the sidelines. I am stunned and sick at how this will effect the boy - and I want only the best for him. But, at the same time, I can not live with a woman capable of the lowest of behavior. For me the deception and betrayal are too much. I am sorry for any effects on the boy but clearly those effects are 100% due to here reprehesible actions. She had choices, which she freely made. I am in no way responsible for those sad choices.

As a follow up, for any lawyers or legal students, what do they teach in law school about these difficult moral issues that the law does not fully address? I am only curious and not seeking to apply any input to my situation.

Thanks again for your help

cdad · Jul 18, 2011, 04:09 PM

What is it at this time that you want to do? They parent that is a legal parent is the one responsible for child support. Challanging paternity at this stage would in effect give away your fatherhood to another man. Because of your current situation you ARE the legal father.

If you wish to remain in the boys life then you must remain the legal father. In California during your dissolution of marriage a custody order (preliminary) will be made (temporary) and a final custody order will be granted when your divorce comes through. For the initial custody you will be required to go to state/court ordered mediation. This is usually a one shot deal. From this point on be very careful what you say to the mother and the child. Ask for and have a plan for the custody level your comfortable with.

ScottGem · Jul 18, 2011, 04:17 PM

First, Maybe your intent was not to dictate, but we can only go by what you wrote. Your words were clearly dictating the type of answer you wanted to receive. I was not being disrespectful, I was explaining how this site works.

Second, the law DOES address this issue. The law clearly states when a child is born during a couple's marriage, the husband is the legal father. Further, the law establishes rules on how and when that paternity can be challenged. CA law, In my opinion, addresses the moral dilemma here by limiting the time frame that paternity can be challenged. My opinion is that, by limiting that time frame, the law acknowledges both the bond that can be established between child and parent and potential damage that can result by severing that bond.

I can perfectly understand your feelings towards your wife. You feel betrayed. But you can sever your marriage without severing your bond with your son. I think you need to take the high road here for the sake of your son. I think you get your divorce without dealing with the paternity issue. I think your son needs to be a little older to deal with the fact that the only father he has known is not his bio father. I strongly suggest that you seek counseling to help you dela with your feeling of betrayal so they do not affect your feelings towards your son.

joypulv · Jul 18, 2011, 07:30 PM

I too strongly suggest counseling.
In your words your son became 'the boy' after the first sentence and in later replies. It appears that we all here hope that your anger can stay directed where it belongs. This is not criticism, just dispassionate advice in the face of strong emotions.
A scenario that came to my mind as soon as I saw this was the one of babies switched at birth. Confusion, anger at sloppy hospital staff, anger at the unfairness of it all. What happens in such stories, not so common anymore, is that the children visit each other's families but stay where they are known and most loved.
I can envision (from my ivory tower) you learning the story behind all this, becoming friends with the bio father, becoming friends with your ex wife (after you divorce the heck out of her), and all 3 splitting the job and costs of raising your son. A boy who really does have 3 parents. It's happening more and more.
The courts and law schools are trying to keep up with huge changes in family law. With DNA and test tube babies and surrogate mothers and men wanting more rights, it's a struggle to keep up.

JudyKayTee · Jul 19, 2011, 04:38 AM

Originally Posted by trickeddad

Joy - thank you for the helpful input. I know I am in a tough position as far as the law is concerned. The law just doesn't address these types of situations. I can tell you there is a very high emotional cost. I know the law can't really address that. I was hoping that maybe the finacial / legal responsibility aspect would somehow be addressed, but I am starting to find out that it isn't. The law protects one of two victims the child. I get that. But, I am the victim of a huge deception that not only has emotional cost, but also financial cost as well.

Scott - you inferred my post wrong. There was no intent on my part to dictate anything. I made a request for legal comments and also to refrain from any opinions on my situation. Maybe next time you should ask if you are not sure instead of assuming my intent. Disrespectful judegments don't get any of us anywhere. In any case, you seem to echo what Joy has indicated. I can try to make it a settlement term and see where that goes.

This is one of those situations where you can't imagine the grieving from the sidelines. I am stunned and sick at how this will effect the boy - and I want only the best for him. But, at the same time, I can not live with with a woman capable of the lowest of behavior. For me the deception and betrayal are too much. I am sorry for any effects on the boy but clearly those effects are 100% due to here reprehesible actions. She had choices, which she freely made. I am in no way responsible for those sad choices.

As a follow up, for any lawyers or legal students, what do they teach in law school about these difficult moral issues that the law does not fully address? I am only curious and not seeking to apply any input to my situation.

Thanks again for your help

Where to start? I read your comments exactly the same way Scott read them. You post your life on an open forum and you get what you get. You want to direct who answers your question you go to a law firm, PAY for the advice and it's targeted.

The law does address "these situations" and is very clear. You were married to the mother. She had a child. The child is legally presumed to be yours. It's (unfortunately for you) just that simple.

You don't want to hurt "the boy." You don't have to. You divorce the mother, not the child. You also believe the "old" boyfriend - who apparently is also the current boyfriend - is the father of the child but there is no DNA testing. If she cheated with the boyfriend, who knows who else is involved. You may NEVER find the bio father.

Law school doesn't teach anything about "difficult moral issues." Law school teaches the law AND moral issues as they pertain to the practice of law.

I'm sorry for the emotional rollercoaster you are on - but please don't take it out on "us."

trickeddad · Jul 19, 2011, 02:17 PM

Thank you all for your time and answers.

First, I can not control how you infer my comments. Formus are limiting to some degree. Will it suffice if I state that I am not trying to dictate how anyone respond? Just trying to limit or prevent careless / rude / mean comments meant to deride me and my situation. My emotions are frazzled and when someone writes that I am trying to "dictate" it rubs me the wrong way. That is the last thing I desire here. If I am too thin skinned, let me know and I will stop posting here and we can all go our separate ways.

In my opinion the law does not address my concern. If, and I agree I may never find out, I could get DNA proof of who the bio father is, the law has no financial recourse for me or my son. On an emotional level, yes there is a strong bond, and I am not asking for that to be terminated. I know it would be damaging. Yes, I agree I am divorcing my wife, not my son. But a marriage is a binding of resources and divorcing is partly at least the equitable separating of those resources. I understand the law protects children and I have no issue with that. But, really, shouldn't the bio father be in some way responsible for the child he procreates? Or is it the unsuspecting acting father's responsibility - and too bad about getting the short end of the stick? From what I am hearing that is exactly what the law is saying. So yes the law does address this, but I believe it falls short. From what I am hearing - tough luck is the answer for me. I guess I wonder why the bio-father gets a pass?

Thank you for caring about my son. I purposely used "the boy" to stay nuetral. It helps me focus on what I am trying to ask and not let my admittedly surging emotions take over. He is a great kid and it is unfortunate this is all coming to light. I can say that I won't come close to the theoretical "we'll all be friends" idea of 3 way parenting. I don't in any way trust my wife and want as little contact and interaction with her as possible. By your answers you have made me understand that I need to clarify that I am really advocating for my son's best interest. I am all he knows as a father and that won't change anytime soon. I just want his bio-father to contribute to his well being too. Why shouldn't he?

From what I can tell, there is no deterrent or consequence to doing what the bio-father did, which was to father a child and walk away. Someone else will just have to raise the child. The mother, a duped acting father, a willing acting father, or the state, but someone else. Our laws shape our behaviors, they tell us what is not acceptable in which situations. Isn't there room to add another wrinkle here and cover this situation? By not placing any responsibility on the bio-father we shift it to the mother and / or others unjustly In my opinion.

JudyKayTee · Jul 19, 2011, 02:25 PM

And in my opinion this is a discussion board question, an emotional support board question - and both boards DO exist here on AMHD - but it is NOT a legal question, which is where it is posted.

And now here comes the part you REALLY don't want to hear - you refer to an 8 year old child you have raised since infancy as "the boy" to stay neutral? I have step grandchildren. They are not my blood. They ARE my grandchildren. Your attitude, quite frankly, amazes me. I think many of "us" here are more attached to our pets than you are to "the boy."

Also, here's what you posted (word for word): "Please, no comments on how stupid I was for not figuring this out - I have had enough pain from this since I found out. I am only seeking LEGAL position answers." If that's not DIRECTING (perhaps you prefer that word over "dictating") how your question will be answered, I don't know what it is. You ask for LEGAL position answers and then YOU'RE the one who goes off on morality speeches.

And the whole passive/aggressive - okay, I'll take my blocks and go home if you don't agree with me approach is not doing you any good, either.

Those of us who post here only know what we know about you because of what YOU'VE posted. There are no pre-conceived notions. Divorce the woman. Hate her. Track down the father. Feel like a jerk. Do whatever makes you feel better.

But to continue to harp on who is going to support a child who you raised for 8 years is not helping you in MY eyes (at least).

Synnen · Jul 19, 2011, 02:46 PM

So you're mad at the biological father for walking away, and not at the MOTHER for lying to begin with?

Priorities are wrong there.

The only way we're going to get to the society YOU want is to make every parent take a DNA test at birth to sign the birth certificate---which is REALLY going to mess with couples going through infertility treatments to conceive and who must use donor eggs/sperm.

What is in the best interest of your son is to continue to financially and emotionally support him. Forget the biological father--you just want vindication or revenge, and neither is healthy for you OR your son.

trickeddad · Jul 19, 2011, 03:29 PM

JKT,

We definitely disagree. We also differ in how we express ourselves on a forum. I am not judging you or your opinions as you are mine. We are each entitled to our opinions. I don't need to explain myself to you any more than you need to explain yourself to me. I already explained that I understand the law doesn't seem to address the question I raised, which was how is the biological father at all responsible? Can he be? Nothing more or less. It was a legal question. I think I have my answer from others and I thank them for that.

trickeddad · Jul 19, 2011, 03:34 PM

No, actually not happy with either of them. The mother I can divorce. The biological father... nothing I can do. My priorities are fine.

I won't even go into your tangent. I am not interested in it. Only how the law would be applied in my situation. But you do offer a solution to my situation. Not for me of course but for the future.Other than the exception you cite are there any other downfalls to DNA testing at birth? Couldn't a lot of good come from that like medical info and predisposition to cancer, or diabetes, etc?

Thanks for posting.

ScottGem · Jul 19, 2011, 03:50 PM

No you can't control how we infer your comments, but you can recognize why we would make such an inference and not chastise us for doing so. Despite being admonished for it. You are still trying to direct what comments you get. If you get "rude / mean comments meant to deride me and my situation" then report them and they will be dealt with.

The law does require that a father support any children they are responsible for. But most of the blame here goes with the mother. If the bio father is not being held responsible its not because of a failure of the law, but because the mother did not hold him responsible. You state: "which was to father a child and walk away.". But how do you know this? How can you be sure that a) this person is the father and b) he is aware of it. You are attributing actions to this person that you can't be sure of.

And let me ask this, did you want a child? Have you enjoyed being a father for 8 years? Did you reap the benefits of fatherhood for all those years. What is this obsession with money? What it sounds like to me is you want this guy punished for cuckolding you. That is where the laws does fail you, because adultery is no longer a crime that is prosecuted.

cdad · Jul 19, 2011, 04:52 PM

The bottom line here is that you have a heavy decision to make. At this point in time your emotions are riding high along with the wave of the situation. Here when asking about law we try to respond on that level. The law as it is written. Do not confuse the law with justice. They are held in 2 different standings. For now you must create a plan that can (if you choose) to keep this boy in your life.

The law is in your favor for making that happen. Don't let the seed of hatred grow to a point it affects the relationship you have with your son. You can't control all aspects of your life. And as far as being stupid for not seeing anything. That's what love is... BLIND. Your not stupid and you need to smarten up as your in legal danger of missing out on your son. The law IS with you.

Don't lose control or it will bite you and the wound will take forever to heal. Keep us posted as your situation develops and we will try our best to assist you through the mud that both of you will be dragging each other through.

ScottGem · Jul 20, 2011, 03:52 AM

One of the principles of this site is we try to express the facts here. We don't try to sugarcoat things. Often someone posts here with preconceived notions of what is legal or fair, etc. So we often have to disabuse the poster of those notions. Sometimes this gets the poster's nose out of joint.

You need to understand this. You came here with a lot of anger directed at the bio father and the mother. Very understandable. But there were realities here that you need to deal with for the sake of your son and for your own sake.

No one has been rude, mean or hateful, we have just given you straight talk meant to help you deal with an unpleasant situation.

joypulv · Jul 20, 2011, 08:09 AM

I am actually pleased with how this legal issue has been allowed by site monitors to have some discussion as well after the law has been made clear, since momentum might be lost carrying it over to another forum. And I think trickeddad has handled it pretty well, all things considered. I can't put myself in his shoes, even though I like to think I have a scenario of 3 parents getting along for the sake of a child.