It is very unlikely that the father could obtain custody but visitation is possible. The biological father could sign away his rights. Good luck.
This answer is only for informational purposes and is not meant as legal advice.
If the biological father learns of the baby he would first have to submit to a paternity test to establish that he is the father. Once that is done, he could apply to the court for visitation/parenting time and you could apply to the court for child support from him. If the biological father relinquishes his parental rights, your current husband would be able to adopt the child.
I have to respectively disagree with my colleagues. Any child born in a marriage is presumed to be issue of the marriage, so once the child is born, your husband shall be the legal father. The longer this situation persists, the less chance the bio dad shall have to intervene as once the child recognizes your husband as the bio dad, the court will not allow anyone to "bastardize" the child and the court will not even consider a blood test once that happens.
The best advice I can give you for the result you want is to not look for the bio dad and continue to raise the child with your husband.
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The doctrine of equitable estoppel will not apply here to cause the bio parent lose his claim to paternity and rights thereunder because you have kept him ignorant that he has a son. In other words, he would probably have a claim to his child upon his demanding a paternity test and confirming that it is his bio child.
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A child born to a married woman is legally presumed to be the child of the husband. To overcome this presumption, another man claiming to be the father would have to submit very strong evidence to even get the court to consider his claim. In NY, such a man may even be prevented from submitting such evidence if it would be harmful for the child to learn that paternity is being challenged. On the other hand, if the marriage results in a divorce and the husband has significant evidence concerning the biological father, the husband may try to disclaim paternity, but again, the court may prevent him from doing so if it is not in the child's best interests.
All of Ms. Brown's responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.
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