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"That's not my child"-- What happens in a divorce if the wife has a child with a man who is not her husband?

There are many reasons that married couples come to the conclusion that a divorce is inevitable.   One of the most common reasons is infidelity; and along with an extramarital affair comes the danger of pregnancy.   What happens in the event of a divorce where the wife has had a baby during the marriage and her husband is not the biological father?


Under Wisconsin family law, where a baby is born to a married woman there is a legal presumption that her husband is the father.  Where the wife has been involved in an extramarital affair, this legal presumption may, or may not, be biologically accurate.  Nonetheless, in the event of a divorce, if the issue is not raised, the court will treat the child as though the husband is the father.   This means that the husband will be ordered to pay child support, and he will have placement and custody rights to the child.


What should you do in the event of a divorce  if you have good reason to believe that the husband is not the father of a child born during the marriage?   Firstly, if you are the husband, you must raise the issue in your answer to the petition by affirmatively alleging that you are not the father.   If you know the identity of the true father, he should be joined as a third-party respondent.   Once the issue is raised before the court, the judge will appoint a guardian ad litem for the child, and order genetic testing.   If the genetic testing confirms the fact that the husband is not the father, then the court will declare the child to be non-marital, and the husband will not be obliged to pay child support; and, likewise, he will not have placement or custody rights.


This is how it is supposed to happen; but, as we all know, in a divorce situation, things rarely happen as they are supposed to happen.   What if the child is ten years old before the husband discovers that he is not the father?  What if, after the divorce, the husband discovers that he is not the father?  What if the identity of the biological father is unknown?  These are all questions that tend to crop up in the event of a non-marital child.


The family court is, generally speaking, required to make rulings that are in the best interests of the children.  Thus, if the non-marital child is ten years old at the time of the divorce, and if the husband has raised that child as his own for all those years, there is a very good chance that the family court will conclude that it is not in child's best interests to determine paternity.  In other words, the husband will be ordered to pay support, and he will have placement and custody rights.   The same considerations come into play where, after the divorce is final, the husband learns that he may not be the father.  Similarly, if the identity of the biological father cannot be determined, the court may conclude that it is not in child's best interest to cut off the parental rights and responsibilities of the only "father" that the child has known, without another man being available to step in.


Plainly, the best course is to avoid this situation entirely.  However, if it occurs in your family, it is extremely important to raise the issue as soon as practicable.   Immediately consult an experienced Wisconsin family law attorney.  The more time that passes, the more likely it is that the legal presumption of paternity will prevail.

Jeffrey W. Jensen is a Milwaukee, Wisconsin family law attorney with twenty-six years experience in guiding people through the legal difficulties involved in ending a marriange.  Mr. Jensen's offices are located at 735 W. Wisconsin Avenue, Suite 1200, in Milwaukee.   For a free consulation, click the telephone icon: