If my husband signed an affaidated is he my son's legal parent or do we have to go though the courts?

Question

My ex never signed the birth papers but my husband did so my question does he have just as many rights as i do?

Answer 1

If your husband signed the birth certificate saying he was the child's father, then he has committed a crime. He is not the biological father, and if the biological father comes forward then it could cause all sorts of problems. All sorts of illnesses these days are hereditary, so knowing your ex's background is very important as the child gets older for medical reasons if nothing else, therefore the child should know who his biological father is. If the biological father wants to, he could make it very difficult for both of you. He could have your husband charged with fraud because it is illegal to lie on a legal document. If he has signed the birth certificate saying he is the biological father, then he has just as many rights as you. If you dont want him to have equal rights, then you need to go and see a lawyer pretty quickly because this could blow up in your face. If he has only signed an affidaffit saying he wants to take full responsibility for the child then
he doesnt have any rights. He has to legally adopt that child if he has any rights under the Law. If he has signed the birth certificate, then get yourself to a lawyer quickly.

Answer 2

Both rightio and brandy are correct.

However, without more factual information there is no way to know how deep you and hubby are in this issue.

For example, was this 'paper' hubby signed an Acknowledgement of Paternity?

Was the child born within a few months of the marriage?

Did your husband know or have reason to know this was not his child or did you mislead him into thinking it was his?

In what state was the child born?

All of the answers to these questions will give me a better idea of what you will be facing. For example, illegitimacy statutes have been struck down by the Supreme Court in Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S. Ct. 1400, 1406-07 (1972):

What that means for you is that each state now, by case law or statute, give both the child and the putative (allegged) father a specific time to file for a determination of paternity. In most states (I would have to know the state to tell you exactly) it is within two years of the child reaching majority (18).

Also, there was either a fraud by you or your husband committed by him signing the AOP. If he knew the child was not his, then the fraud was his. However, if he did not know and you led him to believe it was, then the fraud was yours, however unintentional.

Also, although normally if a child is born within a certain timeframe of the marriage it is considered a child of the marriage for legal purposes, there is a very large rebuttable presumption that the child was not a product of the marriage and on that basis alone the putative father can file as an interested third-party for a determination of paternity and criminal fraud charges against the two of you and let the court figure it out.

To give you an idea of how deep you two are in this, please read the following:

Love v. Love, 114 Nev. 572, 959 P.2d 523, 127 Ed. Law Rep. 1074 (Nev. 05/19/1998)

"A decision of paternity will not operate as res judicata where extrinsic fraud existed in the original proceeding. Where a claim is fraudulently advanced and that fraud is so successful that the other party is not aware that he has a particular claim or defense, this may be a sufficient basis for equitable relief. Villanon v. Bowen, 70 Nev. 456, 471, 273 P.2d 409, 416 (1954). That which keeps one party away from court by conduct preventing a real trial on the issues is extrinsic fraud and forms a sufficient basis for equitable relief from the judgment. Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 (1987); Villanon, 70 Nev. at 471, 273 P.2d at 416; Savage v. Salzman, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972) ; Colby v. Colby, 78 Nev. 150, 153-154, 369 P.2d 1019, 1021 (1962); Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850, 854 (1948)." County of Fresno v. Ruiz, 66 Cal.App.4th 1432, 67 Cal.App.4th 539, 78 Cal.Rptr.2d 665, 79 Cal.Rptr.2d 684 (Cal.App. Dist.5 09/30/1998)

"We are satisfied that the record before us establishes the necessary elements to permit an order setting aside the 1989 default and judgment. *fn7 Extrinsic fraud has been defined generally as conduct that deprives the defrauded party of the opportunity to present his or her claim or defense to the court, "that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding." (In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1068.) "[E]xtrinsic fraud is a broad concept that tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing." (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114 [citation and internal quotation marks omitted]; see In re David H. (1995) 33 Cal.App.4th 368, 381.)"

I suggest you consult with an attorney immediately. You need to clean this mess up now or face the consequences later.

ONE MORE POINT:

If your husband signed the AOP then he is considered the LEGAL FATHER. If all he signed was the birth certificate then in some states he is not considered the father. However, as I said above, if the child was born within the marriage then the point is moot, the child, by law, is a child of the marriage.

Which means nothing based on the fraud committed.

Answer 3

If your husband signed the birth certificate, then he's legally the child's father, regardless of biology. If not, then he needs to file adoption papers. Contact a family law attorney to help you with the legalities of this. Good luck.

Answer 4

If your current husband is listed on your son's birth certificate, then you don't have to go to court. He is considered the child's legal father. An affidavit? I don't know what he signed, but that doesn't necessarily make him the dad. Having his name on the birth certificate does, though.

Answer 5

Unless this paper is notorized and then signe by a Judge does it make it legal and binding. This will be like an adoption which is made only thru the courts. So if its not signed by a Judge and made public then its not legal and he has no rights

Answer 6

If he signed the birth certificate then he is legally the boys father.