Question: I met my wife when she was two months pregnant. We married shortly after the child was born. We refer to him as “our son,” he’s always gone by my last name, we’ve all lived together in the same home. I was not named on the birth certificate due to the fact that we needed state insurance to help pay for the pregnancy. We recently told him who his biological father was. Now my wife and I are going through a divorce, and I desperately want custody of our son or at least legal visitation. I know I’m not his biological father but I’m the only “dad” he knows. Will I get visitation rights with him even though I’m not technically the father?
Also, I am medically retired from the military. I’m afraid when the divorce goes through that the insurance company will drop coverage on my son because he is legally my stepson, not my biological son. He has diabetes and needs good medical coverage, but my soon to be ex wife does not have insurance. What can I do to keep him insured?
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 them, 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). If ordered, you may also have to continue providing the child’s health insurance.
All of this goes with two 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 son’s real father is named on the birth certificate) or if your state uses it sparingly or not at all; and, second, your and your family’s rights to health insurance coverage depend on the terms of your contract, too.
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 Kansas. 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, as most parties in child custody cases do. Cordell & Cordell has attorneys licensed and located in Kansas City and Overland Park.
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.