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Can a biological father request that the mother of the child's husband be equittably estopped from denying paternity?

Syracuse, NY |

A woman was married and had a brief affair with someone during her marriage. She got pregnant. Gave the child her husbands last name and husband signed the birth certificate. They divorced two years after the baby was born and now the woman is coming after the other guy for child support.

Attorney Answers 4

  1. Best answer

    It is possible. However, if all parties knew that the husband was not the biological father, it will be difficult. Because of the child's age, it will be more difficult to show that it is in the child's best interest for the husband to still be considered the father (based on the child's relationship with him). Further, courts usually assume that it is in the child's best interest to be getting child support from someone since you mention the husband is on public assistance and presumably not paying support. I reccomend consulting with a local attorney since this can be a complicated issue.

  2. Possibly. If the husband knew the child was not his but accepted the benefits of being the father, held himself out to be the father, etc., than you can assert the claim and may be successful. If the child knows this man as the father, then it is also possible to protect the best interests of the child and the relationship with the man the child knows as Dad. However, if the child is young, and the husband thought he actually was the father, you may not be successful in making this claim.

  3. There is the doctorine of equitable estopple which may prevent this. However many things will have to be looked at including what the judgment of divorce says. Speak with a local family law attorney and go over all of the facts.

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  4. If a woman gives birth to a child during her marriage, the husband is presumed to be the father of the child. Did the husband know that the child was not his? She can file a paternity petition and seek support, if the child belongs to the other guy. However, if the former spouse knowingly and voluntarily took on the role of father to this child, then it is possible that the court may not vacate the prior paternity determination, since it would be in the best interest of the child to leave well enough alone.

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