What If You Find Out You're Not Your Child's Biological Father?

Parenting a child can often be one of a father’s greatest joys. However, some fathers learn they are not the child’s biological parent. Finding out you are not the biological dad can be confusing and raises many questions.

Paternity and fathers’ rights vary depending on state law. To find out about your legal options in a paternity case, talk to an experienced family law attorney.

Legal Paternity Explained

Legal paternity determines certain legal rights and responsibilities. These include child custody, visitation, financial support obligations, and the ability to make important life decisions for the child — such as healthcare and education — until they reach adulthood.

“Those are all decisions that a parent who is adjudicated a parent gets to make,” says Aislinn M. Penkwitz, a family law attorney at Nelson, Krueger & Millenbach in Milwaukee. “And generally, if we say it’s joint custody, that means that both parents have to agree or there’s no agreement to do it.”

Paternity rights also include placement, which has to do with where a child lives and can be a factor in determining the amount of child support each party should pay. In some states, it is possible for a biological father of a child to not be the child’s legal father.

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Methods of Determining Legal Paternity

There are a couple of ways to determine legal paternity:

• Birth certificate. If the father of the child signs off on a child’s birth certificate, the court will generally presume that person is the child’s legal father.
• Paternity test. DNA tests are generally done within the courthouse to ensure accurate test results. “Usually they’re not looking at any other kind of testing that would be done outside of the court system,” Penkwitz says.

Regardless of the method used, “All the processes require that the courts confer or give those rights to a dad,” Penkwitz says.

Challenging Legal Paternity

If a biological father is someone other than a child’s legal father, then the court would decide any changes to legal paternity. Any of the involved parties, including the mother, adjudicated father, or biological father, can initiate the action.

An adjudicated father can’t abandon their rights. “The court’s not going to let there be a child without a parent,” Penkwitz notes. “So, one really quick way to know that the case isn’t going to be successful… is when you don’t have a replacement—you don’t have that bio dad. Maybe that person has passed away, maybe you can’t find them, maybe they’re not willing to cooperate.”

The court’s first priority is the child and determining what is in the child’s best interest. To help determine the best interest of the child, the court may appoint a guardian ad litem. “They talk to both the parents, whether it’s the legal parent or not,” Penkwitz says. “They talk to the child and [any] therapists involved for the child or for the parents. They’ll talk to anybody that either parent would suggest that they talk to, in coming up with their recommendation.”

The court will also consider the child’s education if they’re school-aged and anything that would affect the child’s well-being, as well as the feasibility of changing legal paternity.

When To Contact an Attorney

If you have any concerns about legal paternity or are facing potential legal action, reach out to an experienced family law attorney. “If there’s any question in a person’s mind that they may end up going to court with regard to these issues, they should reach out and talk to an attorney,” Penkwitz says.

Having a conversation with a lawyer can help you understand the legal issues and what court orders can and cannot do. “If you don’t understand the conversation, that these terms have legal significance, you might be agreeing to things that you don’t intend to be agreeing to,” Penkwitz says.

Another time to get legal counsel would be if one parent doesn’t want to adjudicate the child’s biological father. “Maybe there’s some domestic violence issues, maybe there are some criminal concerns, maybe there are just thoughts that, ‘Hey, I don’t want this to happen, is this a good enough reason not to let it happen?'” In those cases, an attorney can determine if the reason meets the court’s standards and help families find legal solutions.

Family Laws Can Change, So Legal Advice Is Essential

It’s worth noting that state family laws can and do change. Penkwitz says that recent changes to the statute may change the role child support agencies will play in adjudicating paternity rights. “People have to be paying attention to what [documents] they’re getting, making sure that if they see something, if they’re not sure what they’re reading or what they’re being asked to do, call an attorney.”

Many attorneys offer free consultations. They can help address what the procedure is going forward. “Attorneys can’t give necessarily legal advice in the consult, but they can certainly address the fact that there’s a certain procedure coming, and why it’s important to participate in it in a certain way.”

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