Attorney, Cordell & Cordell
Note: Part 2 addressed DNA tests, birth certificates, and proving if you are/are not the father.
What to do when a child is born during dissolution proceedings?
Often, men are portrayed by angry spouses as abandoning their children during dissolution proceedings even when nothing could be further from the truth. Most men want to continue to be involved in their children’s lives as they grow up.
But picture this scenario: A husband finds out his wife is having an affair with another man. They agree that their marriage is over and they file for divorce. Shortly after they file, his wife informs him she is pregnant. Immediately a flurry of questions come to mind: Is this child mine? How can I find out? If I’m not the biological father, am I still legally responsible for this child? Will the child have my last name?
What follows is a brief explanation of paternity laws in the state I practice in, Missouri, regarding the potential outcome of this nerve-wracking situation. This is not meant to cover every situation, and as each situation may produce a different outcome, you should speak with an attorney regarding how to proceed with your case. Also, laws in your state may be different, so you should speak with an attorney licensed in your own state to determine whether this information may apply to your case. Throughout the article, I will be referencing Missouri’s Revised Statutes (RSMO).
If the baby isn’t mine but is born during divorce proceedings before our divorce is official am I legally responsible?
In Missouri, there is a presumption of paternity, or fatherhood, if a man and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or dissolution, or after a decree of separation is entered by a court, RSMO 210.822.1 (1). This presumption is rebuttable by clear and convincing evidence.
There is also a presumption of paternity if an expert concludes that the blood tests show that an alleged parent is not excluded and that the probability of paternity is 98% or higher RSMO 210.822.1 (4). A presumption created by a blood test has conclusive effect in Missouri. If two or more presumptions arise which conflict with each other, the presumption based on the facts of the case that is supported by weightier considerations of policy and logic is determinative of who is the father.
To assert paternity or non-paternity, an action must be brought in court. Not just anyone can bring a paternity action though. Under RSMO 210.826.1, a child, his natural mother, a man presumed to be his father under the previously mentioned statute, a man alleging himself to be a father, any person having physical or legal custody of a child for a period of more than 60 days, or the family support division may bring an action to assert the existence or nonexistence of the father and child relationship presumed under subsection 1 of section 210.822.
This means in our described situation, the husband, the mother, the other man, or the child may bring the paternity action. The family support division may also bring the action, however this is unlikely as they would not want the child to be without care and support. A grandparent or other relative would not be able to bring this action unless they had physical or legal custody of the child from more than 60 days.
Once this action is brought, the Court must engage in a two-step process to determine paternity. Step 1 is to ascertain whether there is “clear and convincing” evidence to rebut a presumption that a presumed natural father is, in fact, the natural father. Step 2 only occurs when, after Step 1, there remain competing presumptions that conflict with one another. If Step 1 fails to eliminate all but one presumed father, the trial court must then, in Step 2, weigh those remaining presumptions conflicting with each other to determine which one, on the facts, is founded on the “weightier considerations of policy and logic.”
Part 2 answered the following questions:
- How do I prove I am/am not the father?
- Can I demand a DNA test? Can I be forced to take a DNA test?
- How do I get my name on/off a birth certificate? I do/don’t want the baby to have my last name so can I enforce that?
While this article addresses some of the issues that arise when a child is born during dissolution or divorce proceedings, you may have additional questions regarding your own specific situation. You should not rely on this article as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in dissolution actions do.
William Halaz is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor’s degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.