I married my husband while I was 2 months pregnant and he was put on the birth certificate he is not the biological father. The biological father has been absent from the babies life for a year and has not pay child support. my daughter is 14 months and now the biological father is seeking custody. can he get custody and will my husband be allowed to adopt my daughter because he's been there while I was pregnant and during her birth he has acted like the father and she recognized him as her father.
Ahmad Moosavi ShabaniCriminal Defense AttorneyPelham, AL ·
Your husband is the presumed father of the child born within the marriage especially that he accepted the child as his and his name is recorded as such. This is the law In most states and even the biological father cannot contest this without the presumed father consent. Your husband does not need to adopt a child that is already his.
If your husband is on the birth certificate then he is not the stepfather, but the legal father. The other issues, which are can the biological father disestablish your husband as the legal father, and whether he can seek custody if he succeeds in doing so, are better answered in person with someone as they are heavily fact specific.
Hello: If the child was born during the marriage he may not need to adopt. If not and you live in a state like NY being on the birth certificate will not be enough. You will need an acknowledgment of paternity or order of family court otherwise you would need to adopt. I would recommend seeking legal advice.
Custody is a complex issue that is determined by the "best interest" of the child. There are may other factors that go into a court deciding custody and visitation status. You will want to speak to an attorney who can guide you through these factors.
Technically, your husband is presumed the father since you were married at the time you gave birth (also, his name is on the birth certificate). If the biological father is now coming in a year later and asking for custody, he will need to overcome the presumption that your husband is the father, which he would probably seek to do through DNA testing.
The bigger question you asked is whether biological father can get custody. Assuming he jumps through the DNA hoop, that answer to that question is a little harder to answer on a forum like this. I would suggest consulting with a lawyer to get a fuller analysis with more facts.
If biological father drops the custody suit and never disestablishes your husband as father, you do not need to go through an adoption. On the other hand, if biological father disestablishes your husband as the father, he will likely be granted at least visitation rights (but will likely also be required to pay child support) and a step-parent adoption will be out unless biological father consents or stops having contact or paying support for at least 1 year. The latter part of this answer may require a bit more explaining from an attorney. Again, I would suggest you seek a consultation.
These cases require an analysis of the facts as applied to the law in your state. Its is important for you to seek the advice of an attorney in your area. In many circumstances, there is a strong presumption that your current husband is the biological parent of the child, although you believe or know otherwise. This is because your child was born during an existing marriage (Although you were not married during conception). This presumption is not easily challenged by a third person. The person seeking to challenge this will need to have permission from a court, which is not often given, because it permits a challenge to an already established family unit.
Since the child was born while you were married, your Husband is presumed to be the father. This presumption is further strengthened by the fact his name appears on the birth certificate. The biological father would need to overcome this presumption if he wanted to establish paternity and subsequently visitation. The only way to over come this presumption would be through genetic testing. For the court to order testing, the biological father would have to show evidence as to why your Husband is not the father. If none of this is done, there is no reason for your Husband to adopt the child.
