Child born during the marriage but not of the marriage

We were contacted recently and asked the following question:

If you have a child with someone you are not married to, and you have a DNA test done to prove that the child is not with your spouse, can you file for dissolution without kids?

The short answer is, probably not, but you will have to research your state’s laws or consult with a family law attorney to learn how your state handles such matters.

In many states, when a child is born to a woman who is married to a man, the law presumes that the husband is the biological father of the child. That legal presumption can be overcome, but only in some sort of a proceeding, such as a dissolution of marriage proceeding. As an example, here is a link to the relevant statute in Ohio.

This approach makes sense when we consider (1) the historically strong public policy in favor of children being born to married parents (aka “legitimacy”), and (2) courts’ mandates to ensure children are cared for and that their best interests are kept front and center when a marriage ends.

Your question suggests that you do not want your spouse to be recognized and considered to be your child’s father. If you plan to represent yourself in the dissolution and paternity proceeding, I strongly suggest you consult with a family law attorney in your state who can advise you about the particulars of your state’s laws. An experienced attorney will be able to guide you in the proper handling of the proceeding so that you have the best shot at achieving the best result for you and your child.

Thank you for your question.

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