Establishing Paternity of a Child born During a Marriage

So what happens when a couple is married but the wife becomes pregnant by another man?  When a child is conceived during a marriage – even if the divorce is finalized prior to the birth – the husband, not the biological father, is considered to be the legal father of the child.  This has far reaching effects.

One of the more emotional issues comes out first – while still at the hospital, after the child is born, the mother finds out she cannot list the biological father on the child’s birth certificate as the father.

Second, the husband is the “legal father” and will be legally responsible to provide financial support to the mother for the child.

Third, the child will inherit from the husband – not the biological father – and the husband will inherit from the child in the event of one of their deaths.

So what can be done?  The legal process to establish paternity in South Carolina is somewhat tedious.  It requires a lawsuit to be filed in Family Court with the mother, legal father and the assumed biological father as parties.  SC Code §63-17-10(E) requires a Guardian ad Litem to be appointed to represent the child.  Paternity can be established by providing evidence of genetic testing, a signed voluntary acknowledgement of paternity, or a birth certificate signed by the mother and the putative father.  The Court can even go as far as “viewing” the child looking for evidence of physical features that might help identify the father.

Upon reaching a determination of paternity, the Family Court can order that the biological father be listed on the child’s birth certificate, order the biological father to be responsible for financial support for the child, and can free the original legal father from any further legal responsibility for the child.


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  2. Here is the situation: My boyfriend (soon to be fiance) has been living apart from his wife (let’s call her Kelly) for the last 6 years. The first 2 years of that, he was in jail. While he still had 6 months left in his sentence (which he served all of), his wife got pregnant with another man’s baby. That child is almost 4 years old now, and she is living with and engaged to the child’s father. My boyfriend (let’s call him Jeff), talked to a lawyer today. The lawyer asked him if either of them had any kids outside of the marriage (they have 2 kids together, but Jeff’s brother has custody, so they aren’t an issue), and Jeff said “yes, Kelly has a daughter with her fiance”. The lawyer told him that, because of this, Kelly would have to hire a guardian ad-litem for her daughter while they investigated paternity, and then Kelly and her “baby daddy”, and the guardian would have to go to court and bear witness that Jeff is not the father, which would take more time and money than we anticipated (the lawyer initially gave him a timeline of 2-3 months for the divorce to be finalized, and a fee of $650 for everything – papers, legal costs, etc.). She also told him that, if he had not told her that Kelly had a kid, they could proceed as planned. He explained that there is no way that he could possibly be the kid’s father, and asked if taking a DNA test to prove it would be enough, but she said no. He walked out of her office, and has a meeting with another lawyer on Wednesday. I told my parents this, and they said it sounds like the lawyer was just trying to get more money from him. I want to know if there is any truth to what she said, and if, legally, he will be okay if he tells the new lawyer that, as far as he knows, Kelly has no other children besides the 2 they have together who are living with his brother. I also want to know if there is anything else we should know about before the meeting Wednesday so that I can tell him, and he can make sure all his ducks are in a row. FYI he and I don’t live together, in fact, I moved to another state 6 months after we started dating (which was 3 years ago) and he still lives in SC,but is planing to move here when the divorce is finalized. Any help would be appreciated. Thank you!

    • Yes. Totally true. Im going thru the exact opposite. Had a baby w some A-hole while I was still married (we were separated at the time but back together now)…well bio dad is mad my husband is back n tried to sue me for FULL CUSTODY AND SUPERVISED VISITS!!! Now he’s losing all rights because he hired an attorney that didn’t know the law. In my situation im so thankful for this law as bio dad was NEVER a big part of my daughters life. Shes always been w me. He denied her while I was pregnant n wanted a DNA test… Cheated 4 times…n NOW is saying im unfit and telling a ton of lies…karma is a BITCH sometimes.

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