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jenniferju2 · Jan 5, 2012, 05:31 AM

We had been together around 3 months when I found out I was 2 months approx pregnant. Our son was born and we ended up getting married. We both signed the birth certificate and that was that. Later it occurred to me that with such a short started dating -to- pregnancy time and given the fact that I left one sexual relationship and started this new one fairly immediately after... I became concerned that our son may not actually be OUR son. I immediately voiced my concern to my husband (which was painfully emotional to go through) and he said regardless of anything that this is HIS son and it wouldn't matter anyway. 2 years later we separated for different reasons. We've been separated for 7 years (married 9) and our son is 10. He only visits him once a year for a week on his birthday since we've separated. I'm trying to officially divorce him and he has been making jabs at me about our sons paternity.. not because he actually wants a test but because he's hurt that were not getting back together. I'm concered for my sons best interest. If this is going to be an issue I want to approach it while he's young so that he's not hurt by finding out later that his legal father is not his biological father because my soon to be ex husband decided to change his mind. The question is this... once I have the court order scientific testing and if it comes back he's NOT the father (I honestly think this is like a 1% chance) how do I change the legal father part after he's determined not to be the biological father (since he signed the birth certificate and you can do that without being the biological father) I don't expect my soon to be ex to go along willingly by the way.

jenniferju2 · Jan 5, 2012, 05:43 AM

In a side note.. Ill deal with who the "real baby daddy" is (I feel so jerry springer) if and once it becomes an issue.

jenniferju2 · Jan 5, 2012, 05:49 AM

Oh and sorry! I live in Florida.

joypulv · Jan 5, 2012, 05:57 AM

Did you get married before or after he was born?

jenniferju2 · Jan 5, 2012, 06:23 AM

About 5 months after he was born

joypulv · Jan 5, 2012, 07:50 AM

This is part of Sec 742.011 Florida Domestic Relations Statutes, saying nothing can be changed (adoption could; that's another matter). But I'm not clear on the exact difference between 'after learning' and 'while known as.' Those sound a bit contradictory to me. Maybe others have some thought on this.

(3) Notwithstanding subsection (2), a court shall not set aside the paternity determination or child support order if the male engaged in the following conduct after learning that he is not the biological father of the child:

(a) Married the mother of the child while known as the reputed father in accordance with s. 742.091 and voluntarily assumed the parental obligation and duty to pay child support;

(b) Acknowledged his paternity of the child in a sworn statement;

(c) Consented to be named as the child's biological father on the child's birth certificate;

joypulv · Jan 5, 2012, 07:53 AM

Never mind, this makes it clear:

742.091 Marriage of parents.

If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock... (rest is about fees due the court)

jenniferju2 · Jan 5, 2012, 08:01 AM

So the only way would be if he were to give up his paternity rights after he found out he's not the father. So its all in his hands... though I can make him take the scientific testing and then Ill know if I need to have a talk with my son or not. Thank you for the information!

JudyKayTee · Jan 5, 2012, 08:23 AM

He can't give up "paternity" rights. He is legally the father - according to the law which "Joy" posted. DNA at this point does not matter.

The next problem is the Court's opinion of all of this - it is actually a crime to list someone on a birth certificate when there is a possibility he is NOT the father.

Fr_Chuck · Jan 5, 2012, 08:27 AM

He is legally the father and really not much could be done about it.

Next child custody and child support are side issues in a divorce, you file for them but they may be fought separately, So if you have been apart so long, not sure what issue with a divorce there is.
You need to file for custody and get a child visitation order in place and get child support order.

jenniferju2 · Jan 5, 2012, 08:45 AM

I don't see how there couldve been any crime in the courts eyes since neither of us had any clue he could even possibly not be the father at the time of birth. No cheating ever took place and it wasn't even possible for me to know if I was pregnant before we got together since I wouldve only been days or a week pregnant. After being together roughly 3 months and being told I'm 2 months pregnant... it was natural for us to assume the baby is his... I wasn't knowingly previously pregnant (not even possible for me to have known if I was)wed been together 3 months and I certainly wasn't showing at 2 months. It didn't even enter my mind as something to think about till I was messing around with baby books and trying to figure out dates after our son was born. As it stands the chance that he isn't the father is remote and may not even exist in the opinion of a professional who would know more than I about varying conception approximation times. Trust me that there never was any wrong doing ever. Faithful relationship... had a baby... found out and told him my concerns when our son was a month or two old... got married a few months later... trying to get divorced 9 years later. Hopefully and I would be shocked if they did.. the court doesn't consider any of that a crime.

jenniferju2 · Jan 5, 2012, 08:47 AM

Regarding the "giving up" paternity rights.. he should be able to as long as there is someone ready to adopt our son in his place.

JudyKayTee · Jan 5, 2012, 08:57 AM

Originally Posted by jenniferju2

regarding the "giving up" paternity rights..he should be able to as long as there is someone ready to adopt our son in his place.

Right, according to the laws in your State. He doesn't "give up" his rights, however, UNTIL the adoption is granted. Having someone else ready to step into his place changes nothing.

JudyKayTee · Jan 5, 2012, 09:00 AM

Originally Posted by jenniferju2

I dont see how there couldve been any crime in the courts eyes since neither of us had any clue he could even possibly not be the father at the time of birth. no cheating ever took place and it wasnt even possible for me to know if I was pregnant before we got together since I wouldve only been days or a week pregnant. After being together roughly 3 months and being told im 2 months pregant...it was natural for us to assume the baby is his...I wasnt knowingly previously pregnant (not even possible for me to have known if i was)wed been together 3 months and I certainly wasnt showing at 2 months. It didnt even enter my mind as something to think about till i was messing around with baby books and trying to figure out dates after our son was born. As it stands the chance that he isnt the father is remote and may not even exist in the opinion of a professional who would know more than I about varying conception approximation times. Trust me that there never was any wrong doing ever. Faithful relationship...had a baby...found out and told him my concerns when our son was a month or two old...got married a few months later...trying to get divorced 9 years later. hopefully and I would be shocked if they did..the court doesnt consider any of that a crime.

I'm not saying the Court will find this to be a crime. There is an expectation that you look at the circumstances and dates PRIOR to signing the birth certificate. The purpose of the laws is just what has happened here - to avoid a question of paternity X years down the road, tying up the Court, upsetting the parties.

As it stands this is immaterial - he IS the legal father. As you said, you told him your concerns about paternity and then you married with him knowing there was a possibility he was not the father, no matter how small that possibility was.

jenniferju2 · Jan 5, 2012, 09:22 AM

OK so the question would be legality. WE had the legal responsibility to review the dates and such before signing the birth certificate regardless of suspecting nothing... and then our marrying possibly involved us in illegal activity since we at THAT time knew there was a possibility and GETTING married was another act of paternity WHILE knowing the birth certificate could be incorrect and paternity could possibly have belonged to someone else. I understand (unless you're about to tell me that I dont)

JudyKayTee · Jan 5, 2012, 09:27 AM

Originally Posted by jenniferju2

ok so the question would be legality. WE had the legal responsibility to review the dates and such before signing the birth certificate regardless of suspecting nothing...and then our marrying possibly involved us in illegal activity since we at THAT time knew there was a possibility and GETTING married was another act of paternity WHILE knowing the birth certificate could be incorrect and paternity could possibly have belonged to someone else. I understand (unless youre about to tell me that I dont)

I am telling you the law, not arguing with you.

Marrying a person who may not be the father of your child has nothing to do with illegal activity. You are adding apples and oranges.

If you are both free to marry in your State... you are free to marry.

jenniferju2 · Jan 5, 2012, 09:29 AM

Just for the record though, I don't neccisarily want for him to give up his rights.. the main thing is I want to get this testing done so I can have a talk with my son before he gets any older and/or relieve my heart that he is the father and I don't have to deal with this. Until now I was thinking that I was going to need some kind of form to have the certificate altered if I found out he wasn't the father just to get things straight legally. I realize now that I don't have a choice even if the DNAs not the same. But before that.. Honestly I didn't and don't know how I feel about it if he were to end up not being the father. Hes not a good father... never calls only sees him once a year... doesnt pay any child support... has no real interaction in his life whatsoever in regards to providing and parenting.. but our son likes to see him when he does come to town though he never misses or wants to call him otherwise.. Our son has a father figure since he was 4 (for the last 6 years) but its not him.. and this father figure would like to adopt if it was ever possible... that could enable the three of us to live a normal life without once a year my ex comes to town to create problems... (which I believe is the only reason he still comes once a year-to keep contact with me) so Im torn on MY feelings over if he was or wasn't the biological... I know wed probably all be better off without him but at the same time I don't like the idea of "hey this has been your dad good or bad your whole life but now hes not." <---not a fun thing to say (I know this has nothing to do legally with my question I just don't like sounding like the bad guy who wants to take dad away... its just not like that)

jenniferju2 · Jan 5, 2012, 09:32 AM

I never thought or accused you of arguing with me... I was simply trying to state what I had learned from what you said and to make sure it was correct. I guess I don't understand then and it seems you're irritated so never mind and thank you for your time at least

joypulv · Jan 5, 2012, 10:30 AM

This is becoming a no win situation for the boy.
You and his 'father' need to settle this ASAP for his sake, regardless of how innocent the belief that he is the bio father. (We see so many people want to manipulate the law to suit whatever retribution they want - not at all saying you did that).
So get the DNA done. Hopefully proceed with adoption (many a bio father has a change of heart after this, however, so don't push it). You are more fortunate than most.

kcomissiong · Jan 5, 2012, 10:39 AM

Jennifer, it will all boil down to this... did he know that there was a possibility that he wasn't the father of your child before he married you? If he did, then he is the legal father and the only thing that can change it is an adoption.