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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.

  • I get several calls a month from people seeking a “simple” divorce. I go through my list of routine questions for determining if it really will be simple and one of those questions (if it’s the wife) is: Have you had a child by another man during the marriage? If it’s the husband, the variant: “Has your wife had a child by another man during the marriage?” It’s really quite amusing when the answer is yes and I tell them just how “complicated” their simple divorce just became. More often than not I get told what an idiot I am and that I don’t know what I’m talking about, that they had a friend who got a simple divorce with a child by another man, what I can do to myself, etc. just before I hang up.

  • Rick Stephens

    Question: if the mother was divorced from the husband and the divorce decree states “no children were born of this marriage” a month before the child was born. Can that be considered ? or if he signs a affidavit denying paternity and the biological father (mothers current husband) signs affidavit acknowledging paternity? rather than going through guardian at litem, DNA testing, etc..

    • Ron E.

      I am having the same issue please respond, my fiance had her divorce finalized a month before our sons birth. I was unable to be put on the birth certificate even though they had been separated for over a year and the divorce papers said no children born of the marriage.. what do i do?

  • a concerned mother

    Hi. My son is one I’ve been married four years (we live in SC) my husband is on his birth certificate and we have not had anything to do with the biological father (who is not my husband by the way) but the biological fathers family wants to be in my sons life. My question is can the biological father get rights and if so would allowing them in our life help him to do so?

  • Megan

    I live in texas my spouse knows he is not the father we have been separated for 6 years my child is 4 do I need a dna test to get divorced or what can we do

    • This rule is South Carolina specific. I have no idea what the law is in Texas.

  • Do you know if a GAL can be appointed prior to the birth of an unborn child? If so, can the Court make a finding of paternity regarding the unborn child at a Final Hearing for Divorce, prior to the child’s birth, if the issue of paternity is uncontested by all parties?

    • The statute says that in a paternity action, ALL proceedings must be stayed until the birth of a child. It may be possible for the court to appoint a GAL prior to birth, but I think that would be it. Everything else has to wait until the birth of the child.

      I’ve had one divorce case where the mother had children by another man during the marriage. I represented the husband. The day of the final hearing she told her lawyer she was pregnant. The GAL for the other children and her attorney wanted to go forward, but I pointed out to the judge that the statute said we could not go forward until the child was born. The judge agreed and the case was continued until after the birth of the child.

  • joe schmo

    So, is this because in most cases the husband was intially listed as the father? Because no one is listed on my daughters birth certificate as her father. I also, seem to recall him signing a paper denouncing paternity, but not 100% sure i am remembering correctly.

  • Steven

    Does this also apply to a woman who is pregnant, and gets married during the pregnancy to a man who is not the father? If not can you please point me in the right direction. Does the biological father have to do the same process? Pls help

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