Question:
I have been married for eleven years, and for three of those years I have wanted a divorce. During the marriage, my wife had an affair and got pregnant. For nine years after that, I thought the child was mine but a DNA test proved differently.
Can I sue for parental fraud?
Answer:
The laws among states differ on the rights, responsibilities, and options for men who find that children born during the marriage are not their biological children. In general, children born to the wife during the marriage are the legal responsibility of the husband regardless of biological parentage until there is a court order changing the legal responsibilities. “Parental fraud” is not a common legal term and I assume you are referring either to seeking reimbursement for your contributions toward the past expenses incurred for the child or using the DNA test as the basis for grounds in a divorce. Reimbursement for expenses of a child born during the marriage, either from your wife or the biological father, would be difficult to obtain, if not precluded completely by the law of your state. Even if such a fraud claim is allowed in your state, such a claim may require proof of the intent of your wife to obtain by deceit support that you would otherwise not have been required to contribute or would not have voluntarily contributed, as well as proof that your wife knew all along that the child was not yours. Assuming the DNA test was conducted in a manner that the results would be admissible in court, whether the affair nine years ago would have any bearing on the divorce is also a matter of state law. You would need to review these issues with an experienced domestic litigation attorney, such as the Cordell & Cordell offices in your state.
Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.
Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.
Reversal of Paternity
Unlike marraige where there is a legal presumption that the husband is the father, in paternity cases the parties have to agree or the mother has to provide who fatherhood. Generally, the names on the birth certificate are not controlling, but a voluntary acknowledgment of paternity (VAP) is controlling. If there has not been a court order confirming that your husband is not the father, he should pursue the matter immediately. The VAP is part of each state’s implementation of federal law and there should be specific state provisions for challenging or vacating the VAP. Your husband should consult with an experiencesd family law attorney in your area to discuss whether the VAP was obtained by fraud, duress, or just mutual mistake. It may be possible that if your husband can prove the VAP was obtained by fraud that your state law may allow him to seek the child support resulting from the fraudulant VAP. However, most issues with vacating a VAP are due to mutual mistake as to who the father is from multiple partners, not fraud by claiming someone is the father who physically could not be.
Re-Can I sue for parental fraud
What if you were never married and the same scenario occured? My husband just found out he is not the biological of his son, born out of wedlock, whom is now 5. He is on the birth certificate and an Acknowlegement of Praternity was signed. A court ordered DNA test, at the request of the mother, was performed and now we find out he’s not his. She has had no contact with his son for 9 months besides the occasional bi-monthly phone call. I am in Arkansas.