I am separated from my wife who is currently pregnant with another man’s child.
I understand that the child is “presumed” to be mine since I am married to the child’s mother, but is there some document or paternity paperwork I can file with my divorce papers to ensure I am not held responsible for a child that is not mine?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Michigan divorce and paternity laws where I am licensed to practice.
One of the strongest presumptions in the law is that a child born during a marriage is “issue of that marriage.” You are correct in your statement that since you are still married that the law presumes that you are the father of the child that your wife is carrying.
However, there is a way of having the court acknowledge that this child is not a child born of the marriage, and therefore you are not the child’s legal father. In Michigan, where I practice, this is known as a Serafin hearing. See Serafin v. Serafin, 401 Mich 629; 258 NW2d 461 (1977).
While each court may have a different way of conducting these hearings, the court must find by a clear and convincing evidence that you are not the biological father of this child. This can be accomplished in several ways, DNA testing, tissue testing, but most often testimony from the parties is utilized.
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It is important to obtain testimony from each party and, if possible, the biological father regarding paternity of the unborn child. The court needs testimony that there is no possibility that the child is yours, and if there is testimony from the biological father acknowledging paternity, this will assist the court in making this determination.
Please note that some courts will require the parties to wait until the child is born to conduct this hearing while other courts will take testimony prior to birth.
It is important that your Judgment of Divorce directly address this child, by name and birth date if possible, and the name and birth date of the biological father. The judgment itself can address the paternity of the child without additional paperwork.
It is important that your name does not appear on the child’s birth certificate so you do not have conflicting proofs at the hearing. If this occurs, you may require a separate order to remove your name from this document.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a divorce lawyer in your jurisdiction.