I have been married for 4 years. My wife got pregnant during that time from another man and gave birth to a girl. I’ve been raising her as my daughter even though I’m not the biological father and my wife won’t tell me who it is. If I get a divorce, will I have any legal rights to my daughter?
The information you provided reminds me of a case I handled fresh out of law school for a man whose wife had three children with another man. She readily admitted that the children were not his, and even encouraged their visits with their real father during the marriage. In the divorce litigation, she claimed that my client was the “equitable parent” and, therefore, should be ordered to pay child support for these children whom genetic testing and her own admissions proved were not his.
The equitable parent doctrine did not apply on the facts of that case, but you may find a similar doctrine that applies to you based on the information you provided. The “equitable parent” doctrine arose out of a case in which a child was conceived and born during a marriage; the husband and the child acknowledged a relationship as father and child (although the husband was not the biological father); and when the parties divorced, the husband desired the rights of paternity and was willing to pay child support. In effect, this doctrine allows a third party to exercise parental rights, including custody rights and child support rights (or duties to pay support).
All of this goes with three big caveats: first, equity may not apply in your case if other facts do not justify it (e.g., if you are only a recently involved father or if your daughter’s real father is named on the birth certificate) or if your state uses it sparingly or not at all; second, if during your divorce the court holds that your daughter is not your biological father, her real father may have standing to bring a paternity action, a separate case, and establish his rights to her; and, third, you may have to initiate adoption proceedings to terminate your daughter’s real father’s parental rights, which is another case separate from a divorce.
I strongly encourage you to contact an attorney near you for a thorough case assessment. Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Oklahoma. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately for additional information and legal representation.
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.