It happens that a guy will knowingly marry a lady pregnant by another guy or with a young child by another man. Then years later when the child is in his teens–even late teens–the couple divorces. The non-biological “father” to the child may love the child and want to be the dad. The “real” biological father may not know of the child or may not want to have a connection–and child support obligation–so late in the childhood of the child.
While it may be tempting to just tell the Court the non-bio husband is the child’s father–he may even be named as such on the birth certificate–is that fair to the biological father to by-pass his rights and give him no chance to step in and connect to his child?–No. And, could the attorneys involved be sued later by the bio dad for fraud?–Probably so!
Maybe a safe way to handle this situation is to join the real bio dad to the case, with a count added to establish his paternity (and may be for reimbursement of back support provided–see final paragraph of this post). Then, if the bio dad wants to connect to his child, the Count is in position to so order.
But what if the bio dad wants not to be declared the child’s father and/or not to pay child support? (Maybe he married and has other children who he is working hard to support.)
What if the child is 15, 16, or 17 years old at the time of disposition of the divorce case?
Do the lawyers run the divorce through as though the non-bio father is the dad of a child of whom he is not the real biological dad? What if they don’t tell the Court about who the real bio father is?
Does that position violate lawyer ethics?–malpractice?–fraud?
But what if the lawyers tell the judge, and the judge says okay to that approach? Are the lawyers off the hook and safe from bar complaints and lawsuits against them down the road?
What if representation by counsel that child is the non-bio guy’s child later costs the child an inheritance–or Social Security benefits–or biological grandparents learn they have a grandchild they never knew their son fathered? Or maybe the child quickly becomes wealthy, dies fairly early, and leaves a large estate of which the biological father or his relatives want a decent share?
I think a judge (and lawyers) should–as one I respect has–flat out refuse an order holding the non-bio guy to be the father of a child he did not biologically father. If he is not the dad, then he is just not the dad. Sometimes saying “no, period” saves a lot of trouble down the road.
One side issue may also surface: the non-bio husband may sue the biological father for five years back support the non-bio guy provided the child. Missouri statute 210.828, subsection 2, provides:
“A parent’s retroactive liability to another party for reimbursement of necessary support provided to the child for whom a parent and child is established under section 210.817 to 210.852 is limited to a period of five years next preceding the commencement of the action.”
Kurt H. King
20 E. Franklin, Liberty, Clay County, Missouri 64068
816.781.6000
Family Law, Personal Injury, Litigation, Other Matters
The Law Office of Kurt H King 