Ask a Lawyer: I’ve been paying child support to a child that turns out is not mine. Can it be removed?

Question: When I was 16 and naive I was led to believe that my then girlfriend was pregnant with my child. Guess what?! After ten years of faithfully paying child support the secret has come out. The child who I have only seen a handful of times is, in fact, not my son. What’s more, it is the child of a guy whom I thought I was friends with. My question is: because I was under age at the time I signed the birth certificate, because I have witnesses who know for certain and would testify that I was intentionally misled, because I am certain that I am not the biological father, and because I am certain who is the father, and because I have not been allowed to have a relationship with this child do I have any chance of having my duty to support this child removed? How would I go about putting together my case? Are there any damages that can be awarded in such a case?  My life has been essentially wrecked due to this bogus charge.

Answer: First things first, you need to contact a domestic litigation attorney in Illinois immediately. Although I do not practice in Illinois, Cordell & Cordell has attorneys who are licensed and located in Illinois who would be happy to discuss your case with you. Unfortunately, in many states there is little relief after a father has been adjudicated. 

Generally, prior to ordering child support, paternity must be established.  This does not require DNA testing, rather, the form you signed at the hospital would suffice.  A minor does not need a guardian’s permission to sign a voluntary acknowledgment of paternity, just a witness.  However, the paternity is not conclusive until six months after you turn 18. 

 Considering you are at least 26 years old, the time to withdraw the acknowledgment has passed.  Therefore, in many jurisdictions, you are Dad despite the fact that a genetic test may prove otherwise.   

Depending on the circumstances of your case and the laws of your jurisdiction, you may be able to petition the court to rescind the voluntary acknowledgment of paternity based on fraud, duress, or material mistake of fact.  You should consult a domestic litigation attorney immediately to describe your situation and to see whether you may have a chance for relief. 

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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One comment on “Ask a Lawyer: I’ve been paying child support to a child that turns out is not mine. Can it be removed?

    My ex girlfriend just done a DNA test with my daughter about 3 month ago and it came back that my daughter was not mine. She is 3 years old and her first love is back in the picture and he is the father and does not want me to see her at all. I love that little girl and do not want to lose her! Do i have any rights?? Im in Kentucky

    From DadsDivorce admin….

    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 Kentucky although Cordell & Cordell has attorneys in your state. 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.

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