FAMILY LAW ARTICLES

Not Yours? Or, The Tale of the Duped Dad

We have seen many, many cases in which fathers have come to us, distraught with the sudden discovery that the child (sometimes children) they’d known and loved was not their own. This type of betrayal cuts deep: at one and the same time, these men learned their child was not “of my loins,” to quote a very early client of mine, and that the woman they had loved and trusted had been unfaithful. Sometimes the betrayal cuts so deep that the man wants nothing to do with the child. Other times the man recognizes he loves the child as his own, regardless of actual parentage.

In the past 12 years, it seems as though I’ve fought on a dozen sides of that war. I know, I know: in most Family Law cases, only two sides exist: His and hers. But I’ve had cases where I’ve represented a) him; b) her; c) the maternal grandparents; d) the paternal grandparents; e) guardians of the children. And the Firm has represented f) the children, as minor’s counsel. FN1. So, yes, I’ve probably been involved in this question of law from a dozen different perspectives. Today, however, I am writing from “Dad’s” perspective.

I don’t know an easy way to distill this into a few pithy words. Sometimes “Dad” finds out when he and Mom are swerved with a Parentage Petition from a man who says he might be the biological father, as Mom was sleeping with him during the time the child must have been conceived. Sometimes “Dad” gets a sneaking suspicion that the child isn’t his, and does a DNA test on the sly, now that they are readily available. Sometimes Mom tells “Dad” straight up that he isn’t “Dad” at all. Sometimes the child grows up in “Dad’s” home, and Dad doesn’t know until many years later that the child isn’t his, only finding out when Mom pulls out the kid’s parentage as a weapon to hurt “Dad.” I’ve seen this many, many times, and each time has its own special set of facts. Betrayal comes in many different sizes, shapes, and flavors, it would seem.

Always, we have two overriding questions:

1.Does “Dad” want to stay in this child’s life and be the child’s Father, regardless of the genetic question?
2.Is the child over 2 years old?

If “Dad” wants to stay on as the child’s Father, we have a lot of tools to bring to bear in that fight. Under a variety of circumstances, “Dad” can often be deemed a “presumed” father. We have all sorts of ways to protect a child’s interest in maintaining a relationship with the only father figure that child has known and loved. The Court is going to act in the best interests of the child. Mom may have had many reasons (or none at all) for stepping outside the marriage; but the child is not at fault, and the Court, and our legal system, recognizes that.

If “Dad” doesn’t want to remain as the child’s Father, the question of the child’s age becomes extremely important. Whether the child was born during marriage, within 300 days of dissolution of marriage, while unmarried parents cohabited… whether “Dad” signed a Voluntary Declaration Of Paternity or not, the time to challenge parentage of the child for any man who may be a presumed father – who wishes to no longer be Father – is before the child turns 2 years old. After age 2, the law disallows those challenges. After age 2, regardless of when “Dad” finds out the child wasn’t his genetic offspring, “Dad” is stuck with being Father, regardless of his feelings on the matter.

My first case in this area came along well over a decade ago. That time, the child was 18 months old, and “Dad” wanted to file for divorce. “Dad” had been deployed at the time of conception but only realized that when the child was born “prematurely” (so Mom claimed) at a hefty 9+ pounds. He’d struggled on, tried to save the marriage, but… couldn’t stand the betrayal. It was eating him alive. We challenged parentage in the divorce proceeding, got a court-ordered DNA test, and eventually “Dad” was declared not to be “Dad” after all. I don’t know what happened to him afterwards. He seemed like a really good guy, but the last I saw him, or heard from him, he was pretty broken. All I know is he was planning to be a military lifer and swore he’d never remarry. I hope he got a happy ending to his story.

Almost at the same time, I had a different case come in which revolved around the same laws. A military man found out that his 6-year-Old son was not, in fact, his son. Wife wanted a divorce and told him he’d have no rights to the child because “it’s not yours.” He went through the phases of anger and depression pretty quickly, but… he loved that boy, and when he realized there was no way out of supporting that child, he rather joyously chose to stay on as Father. A couple years later, his duty station changed, and we got the orders for our client to move away, pursuant to military orders, with the then-9-year-old boy who was infinitely more bonded to “Dad” than to Mom. That child graduated from high school and, I’m proud to say, recently enlisted. His Father is ever so proud. So is Father’s new wife, and that young man’s younger siblings. I’d call that confirmed happy ending.

I’m thinking this morning about an easy dozen other stories on this topic that marked me, helped make me a better attorney. I won’t write about them all. But, if you’re a “Dad” who’s not so sure you’re actually the Father; whether you want to stay on as “Dad” regardless of genetics, or want to escape – call an attorney.

You may be able to choose your fate, if you act quickly enough.

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FN1. I have never taken on the role of minor’s counsel, and do not wish to do so. I don’t see that as anything other than heartbreaking.