Open mariages and paternity

[Legbiter]

Being listed on the birth certificate does not matter.

As a matter of law, if you're legally married you are presumed to be the father (or, if you have been living common law for one year).

In the particular scenario that Meri has, where the couple live together, start raising the child, then split, the husband will be in loco parentis (in place of the parent), even if he is not bio dad.  As such he will be forced to pay for child support.

If the husband wanted to avoid paying child support he would need to separate from his wife, and ultimately get a divorce.  Because if they stay together he will be treated as the father.

Yeah, same here, the chode's on the hook even if the kid is not his.

[Malthus]

Isn't the real issue whether hubby *wants* to be the baby's daddy right now? If so, and he's going into the deal knowing full well that as a result of the open marriage he may not be bio-dad, why should he take any measures to "protect himself"?

Seems he has a choice - decide he doesn't like this whole open marriage business and doesn't want to be a dad if he's not the bio-dad, get a divorce and a paternity test before the birth certificate is issued; or become the dad fully for all purposes, knowing full well the possibility exists he's not bio-dad, sign the certificate, and be on the hook if they split. 

The only complication would be if the other guy wants, if he's the bio-dad, to have paternal rights. No idea what happens then.

[The Brain]

Can't they both sign?

[Ed Anger]

Gross

[Barrister]

The only complication would be if the other guy wants, if he's the bio-dad, to have paternal rights. No idea what happens then.

That does get more tricky.  It's been almost a decade since I did family law so I'm rusty on how that would work out.  Bio dad could probably apply and get some limited visitation rights.  But of course if he wants visitation rights that opens himself up to a request for child support.  A child can't get child support twice, but if there's a problem with the husband then they could seek it.

[derspiess]

Being listed on the birth certificate does not matter.

As a matter of law, if you're legally married you are presumed to be the father (or, if you have been living common law for one year).

In the particular scenario that Meri has, where the couple live together, start raising the child, then split, the husband will be in loco parentis (in place of the parent), even if he is not bio dad.  As such he will be forced to pay for child support.

If the husband wanted to avoid paying child support he would need to separate from his wife, and ultimately get a divorce.  Because if they stay together he will be treated as the father.


The state of the law on this point drove Drakken into a furious rage the last time it came up in Languish...

You sure it's the same under US law?  I'm pretty sure different states have different laws on this.

[Barrister]

Being listed on the birth certificate does not matter.

As a matter of law, if you're legally married you are presumed to be the father (or, if you have been living common law for one year).

In the particular scenario that Meri has, where the couple live together, start raising the child, then split, the husband will be in loco parentis (in place of the parent), even if he is not bio dad.  As such he will be forced to pay for child support.

If the husband wanted to avoid paying child support he would need to separate from his wife, and ultimately get a divorce.  Because if they stay together he will be treated as the father.


The state of the law on this point drove Drakken into a furious rage the last time it came up in Languish...

You sure it's the same under US law?  I'm pretty sure different states have different laws on this.

Certainly not 100% sure - it does depend on individual state law.  But I believe I have the situation correct (though maybe the part about the birth certificate not mattering is different in the US).

in loco parentis is a very old concept so I feel quite confident that no matter the jurisdiction, if the husband starts raising the kid as his own if they subsequently separate he's on the hook for child support.

[Malthus]

That previous thread actually raised a more contentious issue, because in that thread, the factual assumpton was that the "dad" didn't know he wasn't the biological father.

In this case, the "dad" knows that it's a possibility from the start. So if he goes ahead and raises the kid as his anyway, there isn't any particular unfairness to him if he's later held to be, legally, the father.

[Maximus]

Yea it makes a lot more sense for the guy who chooses to become the parent to be held responsible than the guy who has no say in the birth or raising of the child. Biology shouldn't enter into it.

[MadImmortalMan]

Certainly not 100% sure - it does depend on individual state law.  But I believe I have the situation correct (though maybe the part about the birth certificate not mattering is different in the US).

in loco parentis is a very old concept so I feel quite confident that no matter the jurisdiction, if the husband starts raising the kid as his own if they subsequently separate he's on the hook for child support.

Yeah. In most places here, the non-father, if listed on the birth certificate, can be denied a paternity challenge if he's been acting as the father or if the court decides it's not in the child's best interest. There are some statute of limitations I think. Like you have to challenge within a couple years of the birth. But the process of putting him on the certificate includes a legal acceptance of paternity on his part that carries with it those obligations and rights of the parent.

[merithyn]

Isn't the real issue whether hubby *wants* to be the baby's daddy right now? If so, and he's going into the deal knowing full well that as a result of the open marriage he may not be bio-dad, why should he take any measures to "protect himself"?

Seems he has a choice - decide he doesn't like this whole open marriage business and doesn't want to be a dad if he's not the bio-dad, get a divorce and a paternity test before the birth certificate is issued; or become the dad fully for all purposes, knowing full well the possibility exists he's not bio-dad, sign the certificate, and be on the hook if they split. 

The only complication would be if the other guy wants, if he's the bio-dad, to have paternal rights. No idea what happens then.

This is exactly right. The question isn't if he'll be "on the hook". The question is what rights will he have regarding the child if it's found out later that he's not the biological dad?

[Malthus]

Isn't the real issue whether hubby *wants* to be the baby's daddy right now? If so, and he's going into the deal knowing full well that as a result of the open marriage he may not be bio-dad, why should he take any measures to "protect himself"?

Seems he has a choice - decide he doesn't like this whole open marriage business and doesn't want to be a dad if he's not the bio-dad, get a divorce and a paternity test before the birth certificate is issued; or become the dad fully for all purposes, knowing full well the possibility exists he's not bio-dad, sign the certificate, and be on the hook if they split. 

The only complication would be if the other guy wants, if he's the bio-dad, to have paternal rights. No idea what happens then.

This is exactly right. The question isn't if he'll be "on the hook". The question is what rights will he have regarding the child if it's found out later that he's not the biological dad?

I suspect that if he's acted as the father for any substantial length of time, his rights (and responsibilities) would be the same as any other father regardless of biology - though of course, that may vary by jurisdiction, and it may get complicated if the bio-dad attempts to obtain some sort of rights (assuming he isn't the bio-dad).

If this is true, best strategy for securing rights is to do nothing and simply assume the father's role. Though if he's worried about it, it would be wise to consult a family lawyer in his state.

[derspiess]

Yea it makes a lot more sense for the guy who chooses to become the parent to be held responsible than the guy who has no say in the birth or raising of the child. Biology shouldn't enter into it.

How do you prove that you did not choose to act as the parent?

[MadImmortalMan]

This is exactly right. The question isn't if he'll be "on the hook". The question is what rights will he have regarding the child if it's found out later that he's not the biological dad?

I suspect that if he's acted as the father for any substantial length of time, his rights (and responsibilities) would be the same as any other father regardless of biology - though of course, that may vary by jurisdiction, and it may get complicated if the bio-dad attempts to obtain some sort of rights (assuming he isn't the bio-dad).

If this is true, best strategy for securing rights is to do nothing and simply assume the father's role. Though if he's worried about it, it would be wise to consult a family lawyer in his state.

If he signs the paternity acceptance and then vanishes, there can be problems later for the mom. She would not be able to change the kid's name or get the kid a passport without his permission.

[Malthus]

Yea it makes a lot more sense for the guy who chooses to become the parent to be held responsible than the guy who has no say in the birth or raising of the child. Biology shouldn't enter into it.

How do you prove that you did not choose to act as the parent?

By not acting as the parent, in a situation in which you know or ought to know that the kid may not be yours.

My suggestion: get a divorce and a paternity test (if you choose not to be the parent of your wife's child). That would be pretty convincing.

I doubt one could successfully pull off "yeah, we are married and living in the same house, but I decided not to be a parent to my wife's kid". A court is likely to look somewhat askance at that.