Ask a Divorce Lawyer: Can my wife keep my name off the birth certificate if I’m the biological father?

Question: My wife and I want a divorce. She is pregnant with our child, and now I am deployed overseas and will not be home for the birth of our child. 

She doesn’t want to put me on the birth certificate as the father and she wants the baby to have her maiden name. 

Is that possible and what can be done? Can I force her to put my name on the birth certificate or have the baby take my last name since it is my child?

Answer:

While you are married, the law presumes any children born to the marriage are marital children, i.e. the husband is the father and the wife the mother.

So long as you are overseas, it will be very difficult for you to obtain sole physical custody or parenting time with your newborn. This is because, in most states, the family courts award custody to the party in the child’s established custodial environment, i.e., back home with your wife. Of course, there are always exceptions – if the home is abusive, if the home is new or the child has no attachment, etc., — but, based on the information you have provided, that does not appear to be the case in your family. Your newborn will most likely be attached to your wife at birth, come to depend on her and know her, and it would be difficult for a judge to order the newborn moved overseas. 

If you can avoid divorce until you return and/or provide an established environment for your child, your chances of obtaining sole or even equal physical custody increase. In the meantime, family counseling can be beneficial. You may find no- or low-cost counseling services near you based on your income, as school or religious service or as a benefit of your active army status. 

If your marriage does deteriorate to the extent divorce is inevitable, here are a few things to keep in mind: 

(1) In general, the standard to apply for any custody decision is the “best interests of the child” standard. State statutes and case law define this standard differently, but there are certain factors and/or themes that appear in the majority of states. For example, in Michigan, where I practice, family courts must consider the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence . . . of the existing or proposed home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant

You will find the same or similar factors in most states.

One common factor is the “environment” factor. Courts strive for stability for children; that is, they rarely render custody decisions that remove children from established custodial environments. The parent residing in the environment usually receives more custodial time. If your active army status has you moving about the country, or the world, multiple times a year, and you and your wife are equal on all other factors, a court may favor your wife’s environment to yours. An experienced family law attorney will know how to advocate on your behalf.

(2) If your wife files for divorce while you are away, you may seek a stay of the case, including a stay for child custody and child support issues, under the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA). The SSCRA protects defendants from certain civil judgments and liabilities, including those in divorces, during periods of active duty. Among other things, the SSCRA requires creditors to cap interest rates, tolls statutes of limitations for certain legal actions, and protects from eviction and repossession. To take advantage of the SSCRA, the active service member must notify the court, usually in the first responsive pleading or as soon thereafter as possible, of active status and request a stay of proceedings under the SSCRA. An experienced attorney in your area will know how to request this relief on your behalf. 

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Alabama. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Thank you for submitting a question to Cordell & Cordell, P.C. 

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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