Unfortunately, throughout past decades, there have been men who have found themselves in the difficult predicament of discovering that their presumed biological child is not actually their own biological son or daughter.
This devastating news can be exacerbated by the legal mess in which the father may then find himself attempting to “disprove” paternity, if such paternity has already been accepted by the court.
There are four common case situations that can arise in this type of matter:
1) Father and Mother are not married, and have never formally established paternity with the court, and Father has been informally supporting the child and holding the child out as his son or daughter.
2) Father and Mother are married, or in the process of divorcing, but have not yet finalized their divorce. There may be a preliminary order establishing child support, custody, etc.
3) Father and Mother are divorced, but Father never had reason to challenge paternity during the dissolution process, and only found out afterwards that he is not the child’s biological father. Child support, custody, etc., has already been ordered by the court in the parties’ final decree.
4) Father and Mother have established paternity through a paternity case, and Father previously did not pursue a paternity test when the court first formally established his fatherhood. Child support, custody, etc., has already been ordered by the court.
In the first situation, Father is generally protected from being held to the responsibility of supporting the minor child, unless Father would choose to adopt the child. There is no court order that needs to be overturned or modified, so Father is not required to support the child unless he chooses to do so.
If Father refuses to voluntarily support the child, Mother has no way of establishing that Father has a legal responsibility to do so, because Father can request a DNA test before paternity is legally established, thus disproving any claim Mother would make against Father to establish paternity.
In turn, however, Father has no way of establishing his rights to have parenting time or custody with the child.
In the second scenario, Father can request a DNA test through the court prior to the finalization of the divorce case, if he has reason to suspect that he is not the child’s biological father. If the paternity test confirms that Father is not biological father, then he can request that the court terminate any preliminary child support order and can request that the child be deemed not a child of the marriage by the court.
Please note that this can have a profound effect on any child custody or parenting time request Father may make, as, unfortunately, if he revokes his legal parentage status of the child, he does not have the rights of a legal parent.
The non-biological father can request “stepparent visitation,” which the courts can grant to a person who has been actively involved in the rearing of a child and has a bond with the child. However, custody is usually not granted to a “stepparent” or de facto custodian unless the legal parent(s) of the child are shown to be unfit or an unsafe environment for the child. It is a much higher burden for the caregiver to meet than if he were the legal parent of the child.
Father can always choose to adopt the child, but with said adoption also comes the responsibilities, financial and otherwise, of raising the child, and Father will be legally bound to communicating with Mother until the child is grown.
How to respond in this situation is a difficult and highly personal decision for any man facing such an issue, and the father should consult with an attorney, a counselor, a religious clergy member, trusted family or friends, etc., before making this decision.
In the third situation, Father has an uphill battle to overturn an existing court order, wherein the child was established as a child of the marriage and the divorce case is final.
Indiana courts have held that, after a child has been deemed a child of the marriage and a final decree has been issued, Father must generally stumble upon the information of incorrect paternity in a way not related to a child support case, i.e., if a child becomes injured and needs emergency medical attention, and through medical testing from the injury the doctor advises Father that it is impossible that Father is biological Father, then the court will consider overturning the paternity finding and terminating a child support order.
Again, please be aware of the serious effect that such an overturning of the order can, and likely will, have on custody and child support matters.
In the fourth situation, Father can sometimes contest a paternity finding within two years of the judgment if, for example, the paternity finding was a result of a default judgment, i.e., Father did not show up to court for the final hearing, and the court established paternity in his absence.
However, once that two-year deadline has passed, the courts will almost always steadfastly refuse to overturn a paternity finding, unless Father can prove improper service of notice of the paternity proceedings.
In the court’s eyes, Father had an opportunity to confirm his paternity when the case was established, and declined to do so. It’s a harsh form of “you snooze, you lose.” Case law has even declined to dis-establish paternity in a case where Father was shown to be illiterate and of unsound mind at the time of the paternity finding.
While this is a harsh rule, the courts must look to the best interests of the children involved, and the trial courts and appellate courts have determined that leaving a child fatherless, once a father has been established in the court, is not in the best interests of the child.
Please note that this information is not intended to discourage fathers from establishing paternity, supporting their children, or adopting a child that the father has believed for years is his own child.
Parentage is about much more that DNA. Having rights regarding parenting time, custody, and major decisions regarding your children are linked with establishing formal legal paternity of your children.
That being said, if you find yourself in this tragic situation, and you wish to know your rights, and limitations on what your legal options are, the above information can help you get started.
You should consult with a family law attorney if you find yourself in this predicament, as he or she can counsel you on your options for your specific case, depending on the facts of your situation.