Discovered Your Child Is Not Your Own? Do You Have Any Legal Right To Custody Or Visitation?

18 August 2016
 Categories: Law, Articles


If you've recently been hit with the bombshell that the child you've raised from an infant is not biologically your own, you may be wondering about your options. If you divorce your spouse for this deception, will you have any legal right to seek custody or visitation of your child? Can you be required to pay child support, even if a DNA test conclusively shows that you're not the father? What can you do to minimize the disruption this discovery will have on your and your child's lives? Read on to learn more about your right to parent a child who is not biologically your own.

Do you have any legal right to seek visitation or custody of a non-biologically-related child?

Although the situation you've found yourself in can happen anywhere, at any time, each state's laws dealing with custody of children by non-biologically-related parents can vary somewhat. Some states presume that a child born during a marriage is a child of that marriage, even with DNA evidence refuting this -- as a result, unless the biological father is prepared to step up, go to court, and accept physical and financial responsibility for the child, it's likely the named father will continue to carry this responsibility. This can include primary or joint custody and even the payment of child support from mother to father or vice versa. 

In other states, the ability to seek custody largely depends on the circumstances under which the child was conceived and raised. For example, if you marry a woman with children from a previous marriage, don't adopt those children, and later divorce, it's unlikely you'll have any legal claim to custody or even visitation of these former stepchildren. On the other hand, a child born to a marriage and presumed from birth to be the child of both parents is generally treated differently for custody purposes, and the unrelated father may be granted custody in loco parentis.

Courts that handle custody matters are also given the discretion to make their decisions based on the best interests of the child in question. Even if you have no legal right to your child, if you're otherwise an involved and loving father and can show that your child's life would be lessened if you weren't in it, it's likely the judge will grant visitation to allow you to remain a strong parental presence for your child. If your child is old enough to testify in court and indicates that he or she wants to maintain a relationship with you, this can be an even greater point in your favor.

What are your options if you discover your child is not your own?

The first (and arguably easiest) option is to accept this deception, forgive, and move on. Remaining married to your spouse and continuing to raise your child as a couple will avoid court involvement in your marriage, parenting, and finances, and will usually allow you the greatest amount of time spent with your child.

Another option you may want to consider, whether or not you decide to remain with your spouse, is adoption of your child. Because states frequently tweak and amend their divorce and custody laws, being granted custody of your unrelated child after divorce may not be a permanent arrangement -- and if laws change, you could find your parental rights changing as well. On the other hand, adoption permanently severs a child's relationship with his or her biological father and creates a new legal one with you, ensuring that no one can interfere with your ability to parent your child. 

If you do choose divorce, you'll want to enlist the help of a family law attorney. Trying to go it alone (or with someone who isn't experienced in non-parental custody matters) could potentially jeopardize your rights to (and relationship with) your young child.