By Anne Shale   |   December 29th, 2012

What Is The Dilemma Posed When a Child Born During a Marriage is not “Issue” of the Marriage?

paternityFactual Scenario:

John and Jane Doe have a six-year marriage and no children.  They have come upon difficult times in their marriage.  They are encountering financial difficulties and are literally living from paycheck to paycheck.  John is drinking more than usual to cope with the financial difficulties of the family.  Both are worried about the security of their positions of employment.  They decide to separate to determine if their marriage can be salvaged or if they should terminate their marriage by divorce or dissolution.

Both parties begin to date other persons during their separation from one another.   Jane becomes pregnant with her “boyfriend’s” child.  The boyfriend, Jeff, feels as though he was trapped into an unwanted and unplanned pregnancy and breaks up with Jane.  Jane decides that she wants to try to reconcile with her husband, and they do reconcile and begin living together again as Husband and Wife.  Six months later, a child is born and is named Aiden Doe.  Because Aiden was born during the marriage of John and Jane Doe, he is presumed to be born as “issue” of the marriage.  John Doe’s name appears on the birth certificate.  John and Jane commit to salvage their marriage and to raise Aiden together.

But Complications Ensue:

Jeff has admitted to his parents that he is the biological father of Aiden Doe. The parents are financially secure and have been waiting and longing to be grandparents.  They are willing to pay Jeff’s legal fees to establish paternity and to establish a father/son relationship between Jeff and Aiden Doe.  They retain an attorney who files a Complaint to Establish Paternity and a Father/Son Relationship in the Juvenile Court wherein the parties reside.  The case is a Juvenile Court case as Jane Doe and Jeff were never married to one another.

Jane Doe would be served with Jeff’s Complaint to Establish Paternity.   She would be given twenty eight (28) days to provide an Answer or responsive pleading to his Complaint.  Jane could either admit that Jeff was the biological father of Aiden or she could deny same.  If she denied that Jeff was the biological father of Aiden, the Juvenile Court would order DNA testing of Jane, Jeff, and Aiden.  Most DNA testing is now done with a “buccal swab”, i.e. a swab taken from the inner cheek/mouth of the Mother, Father, and Child.  If the DNA testing results confirm that Jeff is the biological father of Aiden, the Juvenile Court would file an Entry that a father/child relationship does exist between Jeff and Aiden Doe.  And, the Court could address the issues of child support, parenting time, health insurance, etc.

What are the factors “driving” the foregoing scenario and how will they play out in actuality?

  1. Assuming that the relationship between Jane and Jeff was to be short-lived as she was married, Jeff may not want to even think about acknowledging paternity of Aiden Doe.  If he acknowledges that he is the child’s father, he would be responsible for paying child support to Jane until the emancipation of Aiden.  Also, he might be held responsible for payment of a percentage of Aiden’s uninsured medical expenses.
  2. Assuming that Jeff’s parents want to have a grandchild in their lives and that they are willing to pay for Jeff’s legal expenses, I think that Jeff could prevail in establishing a father/child relationship and his right to have visitation with Aiden.  Depending upon Aiden’s best interests, Jeff might be granted alternate weekends with Aiden and one evening per week.
  3. The fact that Jane conceived a child during a period of separation from John Doe certainly creates problems between John and Jane Doe.  Can they reconcile their differences?  Can they overcome the friction that might present if Jeff appears at their home to commence parenting time and a relationship with Aiden?

Other Alternatives:

  1. Jeff has no plans to pay child support for Aiden Doe, and he sees the situation as a “one night stand” and is not interested in establishing paternity of Aiden.  He actively wants to avoid a child support obligation, and he has no intention of having visitation with Aiden.
  2. Jeff’s parents ignore his wishes and decide to seek visitation with their grandson.  Paternity would have to be established in order for Jeff’s parents to have “standing” with the Court to seek grandparent visitation.
  3. In the event that John Doe decides to terminate the marriage with Jane due to her marital infidelity, Jane could file a Complaint to Establish Paternity of Aiden in Juvenile Court in order to obtain child support from Jeff.

The moral of the story…….We reap what we sow!  We must take personal responsibility for our actions in and out of marriage!  Situations of this nature can become extremely complicated from a legal standpoint.

Complicated Paternity Requires Legal Counsel

If you find yourself in this type of a scenario, be sure to obtain legal counsel from an experienced family law attorney as soon as possible!

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Anne ShaleAbout The Author: Anne Shale
Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.

Paternity Issues: When A Child Is Born During A Separation
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