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Establishing paternity when the husband ain’t the daddy

A few times a year I am contacted by a mother who wants to put her child’s biological father on the child’s birth certificate but she was married to someone else at the time of the child’s birth.  What she expects to be an easy procedure isn’t.  Family court clerks will tell her she needs a guardian for her child so she goes searching for a guardian. Actually the procedure is more complicated than that–a lot more complicated.

“In South Carolina, there is a common law presumption that a child born during lawful wedlock is a child of the marriage.” Fisher v. Tucker, 388 S.C. 388, 697 S.E.2d 548, 550 (2010).  South Carolina couples regularly get divorced without mentioning in their divorce pleadings that, after the parties’ separated, wife gave birth to a child that isn’t her husband’s.  The court, unaware of this child’s existence, grants the parties a divorce.  The divorce decree remains silent about this child’s existence, but paternity remains presumptively the now-ex-husband’s.  Later, when the mother or the biological father want to address paternity, they expect it to be an easy procedure and are surprised when it isn’t.

The law deliberately makes it difficult to “delegitimize” a child.  Decades ago it was considered shameful for a married woman to bear a child that wasn’t her husband’s child: the archaic legal definition of such a child was “bastard.” The law demanded procedural clarity before it turned a child from one born of the marriage into a “bastard.”  Even though the stigma surrounding such children has greatly lessened–if not been eliminated–within the general culture, the law still demands procedural safeguards.  Thus S.C. Code § 63-17-10(E) requires:

Whenever an action threatens to make a child illegitimate, the presumed legal father and the putative natural father must be made parties respondents to the action. A child under the age of eighteen years must be represented by a guardian ad litem appointed by the court. Neither the mother nor the presumed or putative father of the child may represent him as guardian ad litem.

While the statute does not define “presumed legal father,” common law makes it clear that this term refers to the husband.  When a married woman bears a child that is not her husband’s, one must make both the husband and the biological father parties to the paternity action.  This is true even if mother and husband divorce after the child’s birth.  If the child is under the age of eighteen, an independent guardian ad litem must be appointed for the child–and someone will need to pay the guardian’s fee.  Even if all parties agree on paternity, there will need to be a hearing in which the mother, the husband, the biological father and the guardian acknowledge the biological father’s paternity.   When uncontested this is still an involved and not-inexpensive procedure.

The general culture is getting so inured to paternity being divorced from matrimony that most folks assume it is easy to establish paternity of a child when the husband isn’t the father.  However the legal culture encourages and strongly desires that child bearing and marriage remain congruent.  Thus, for the foreseeable future, making a child born of a marriage into a child born of another man will likely require formal and involved legal proceedings.

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