You are here

Bio Fathers Rights vs Acting Father's Rights

WTHDISUF's picture

Hi All. I have a rather unique situation and wondering if you all could give an opinion or input. My DH is raising a son that was born of an affair by his Ex-wife. His Ex said the BioFather will never know the boy exists so he was going to grow up Fatherless. Therefore DH divorced her but stayed the Father in her kids life since his birth. He's more of one than some Bio Fathers! Here's the trouble: The kid is of different Race and is now almost 9. For the past year or so he's been questioning why he and his Father are different races. BM and DH is ignoring the situation & won't address it. Long story short, I feel in the next few months the truth will come out one way or the other and it's going to be catastrophic b/c they've lied for so long.

What is sure to follow this revelation is that he's going to want to know who his real BioFather is. DH concerned that real Dad will then want visitation and possibly custody when/if he finds out about the boy. So DH is already decided he is going to fight to prevent any of this, when/if it happens. My question is would he be legally entitled to do that? The child has DH last name but basically the real Father's rights have been trampled on from the get go so if he wants to know his son and be part of his life, will courts honor that? DH doesn't know who the man is; doesn't know if he's a decent man, doesn't know if he has other kids; no one knows anything about him besides his exwhore & she refuses to talk about it. She has unilaterally decided the lives of 3 people when she decided to have affair, have a baby out of it, put it off on another man, not tell the real father & not tell the kid. Now the gig is coming to an end b/c this kid is getting too old to be lied to about something so obvious. Will DH have any rights legally? Will the BioFather? As the kid gets older, won't he have a say?

BuffaloGal's picture

Who is the father on the birth certificate? What does their divorce decree/CO say about this? Has DH been ordered to pay child support? Many states say that if a married woman has a child, the child is legally presumed to be the husband's unless he takes legal steps to change that. The law does allow for the court to disallow a biological father from having legal rights to the children if it is in the best interests for the children that the presumed father (your husband) to remain the legal father. If you are married and a child is born during the marriage, there is a legal presumption (in most states) that you are the father. In some states, that presumption is irrefutable. In those states, this can result in certain paradoxes. For example, if you are the biological father, but the mother is married to someone else, you will not be the legal father with rights to custody or visitation. On the other hand, if your wife has a child by another man during your marriage, you are presumed to be the legal father. You could then be required to pay child support for a child that is not yours biologically.

In 21 states (Alabama, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas and Washington), a man can be the presumed father in one or more of the following cases:
•He and the child’s mother are married (or were married) and the child was born during the marriage (or within 300 days after the marriage ended).
•He and the mother attempted to marry prior to the child’s birth and the marriage was (or could be) declared invalid and the child was born during the invalid marriage or 300 days after it was terminated.
•He has acknowledged his paternity in writing.
•He is listed as the father on the birth certificate with his consent.
•He has resided with the child while the child was a minor and publicly claimed the child as his biological offspring.
•He is obligated to pay child support, whether by court order or voluntary agreement.
http://myfamilylaw.com/library/children-parenting/paternity/what-does-pr...

BuffaloGal's picture

Basically, what's important is the state the kid's in (I'm assuming SC?) and what your DH's right/responsibilities are in the divorce. Since he knew about the affair and chose to act as the child's father, he probably IS the child's legal father, and the biological father would have a hard time (assuming he even wanted to, which is unlikely) proving that it would be in the child's best interest to have him involved. HOWEVER, any relationship the kid has with your DH is going to be damaged terribly the longer he has to wait for the truth. I know men like to put off unpleasant conversations indefinitely, but the kid has to know, and the longer he feels like he was lied to, the angrier and more betrayed he is going to feel. It is part of the job your DH willingly signed up for as a dad to tell his son the truth about all kinds of things - and this may be the most important truth of all. And other than urging your DH to man up and do the job and supporting him as much as you can, there's nothing YOU can or should do.

When he finds out the truth, your SS may need counseling - it would be an awful blow for me to find out the world I thought I knew wasn't real. Sooooooo much of this could have been avoided if his BM didn't have so much invested in this deception. Sad

WTHDISUF's picture

We live in SC due to DH job transfer in April. The BM and SS8 live in NC still, 4hrs away. We still have him a lot so he's still very actively the Father. You are so right in your last sentence. She's done a lot of damage this whole situation. DH said he was going to start telling him in terms of 'adoption' back when he was 4-before school so that he'd grow up knowing & it'd be normal vs a secret. But she forbade it and said leave it up to her when she decides to tell him. Except she hasn't told him. She would just tell DH to tell anyone who questions that "we're special". Well that flies at 3yrs old but not at 8! We don't know if he questions her the way he does us/me. She is same race as child so no one has reason to question them but we get innocent or confused questioned by kids, their parents, school personnel, etc all the time when he is introduced as Dad. They ask if he's adopted and he says no. He doesn't understand why they are confused but now he is showing his own confusion because he's starting to question it himself. DH just changes the subject. I told DH this is going to be bad when he learns and have urged him to get with BM and tell the boy before someone else does which would be even worse! He corners me with questions when DH is not around and I have to play it off-not my role and I feel horrible for him. I think the kid is a brat and his BM is a biatch who takes advantage of DH kindness and takes us for granted. But I still don't want to see anything this devastating happen to him; he's a kid and had no choice in how he came to be. I want DH to continue to be his Dad-for his sake too. But this is all in jeopardy due to his age and the inability to continue this lie.

All of these 'odd questions' from others will suddenly make sense, he's going to feel confused, lied to and may act out poorly or in the least be angry with BOTH of them. He has nothing in common with DH as it is. Sad
Counselor we spoke to said tell him right away and suggested how to ease him into the truth. That was a year ago and no one has told him anything. It's not like they have to say "you were product of mommy being a whore". That's for later but this lie is going to come to light simply because the boy is too old to keep fooling. And I don't know what's going to happen legally.

Rags's picture

Time for the REAL dad Vs. BioDad discussion. My wife and I met when our son (my SS) was 15mos old and we married shortly before he turned 2yo. I am the only full time dad he has ever had. He has had visitation with his SpermIdiot (BioDad) his entire life and we did have a few instances of the SpermClan trying to polute the kid agaist me by saying "he is not your REAL dad he is just your stepdad, etc...."

I countered their toxic bullshit by explaining to him that a BioDad is the dad that made him wiht his mom and a stepdad is a dad that is married to his mom and helps raise him but that a real dad is the dad that goes to work every day to make sure that he and his mom have a nice place to live, good food to eat, safe vehicles to drive, goes to parent teach conferences, goes to every band concert and school play, coaches his sports teams, teaches him to use the bathroom, teaches him to read, to write, to ride his bike and who loves he and nis mom very much.

He thought about it for a second and said "a stepdad sounds like a real dad to me". The first time we had this talk he was ~5yo and the second time he was ~8yo. We never had to have the conversation a third time.

He is now 20yo and, is a self supporting viable young adult/man serving in the USAF and is a college student. His SpermIdiot is still a worthless POS and his SpermClan has had little to do with him since he turned 18yo. They are intimidated by success and at 20 MY son is far more successful than all of the prededing generations of the polluted and toxic end of his gene pool conbined.

Your SS needs to know that his dad (your DH) loves him and is his REAL dad regardless of what toxic crap his BM feeds or hides from him and no matter who his BioDad is and what race his BioDad may be.

My son has known his SpermIdiot his whole life and he has known that I am his REAL dad only slightly less time than that. Your SS can have the same confidence that your DH is his REAL dad because ..... DH is his REAL dad.

Just my thoughts of course.

Good luck.

WTHDISUF's picture

Rags, this was my suggestion to him. To start with what 'makes a Dad' and keep it positive. Then ease him into the "I may not have created you with your Mom, but I chose to be your Dad because I think you're a special guy who deserves a good Dad". This won't stop him from wanting to know where he came from but it will stop his confusion about the race difference and the questions from others. It'll be the most gentle way possible. He may still feel betrayed, mad, unwanted and out of place. Even if he handles it okay now, this could brew and stew in him until he's old enough to put words to his feelings and then we'll really see the results of the lies .Time is just running out though for a possible happy ending.

WTHDISUF's picture

Well he was married to her and didn't know the child wasn't his so when it was born, he did sign the Birth certificate. Child was 7mths old when he finally saw that child was not biracial and confronted her and she confessed. But legally it's his kid. There's no court-ordered visitation and no court-ordered child support-everything is just voluntary. I haven't seen it but he said it's in the divorce decree that she can never come after him for legal child support. He does acknowledge he is the Father though he cannot and has not claimed him as his biological child because he's clearly not.

I guess my thing is if the real Father was not ever given the chance to Parent we don't know if he is the best fit or not. His chance was taken from him by the Mother when she refused to tell him the child exists. So Dh is afraid the courts will give BioFather the chance through at least visitation. Courts may be able to make DH be the 'legal' father which is fine, but can they legally keep the BioFather out of the kids life? Seems awfully unfair if so. I also told DH that if this guy hasn't done anything wrong he deserves the right and his son deserves to know where he comes from, to have the love of other grandparents and possibly siblings. (DH Mother refuses to acknowledge the child as her grandkid so he does not have any dealings with her at all over this). I think it could work out without the legal wrangling if DH accepts that he is the Father but acquiesces that kid has the right to know where he came from. Spending money to fight something that in a few years the kid will decide on his own to do doesn't make sense.

BuffaloGal's picture

It sounds like DH wishes that there would be no way this guy could ever come between him and SS - I can't blame him, but you are so right - in a few years the kid will be able to try to find the guy on his own.

Is it really likely that the father never saw BM again after their last night of passion and so never saw her pregnant, etc.? Or is this just some BS she came up with to keep your DH and SS away from finding out who he is? He could be a married co-worker of hers or something, has always known about SS, and wanted nothing to do with the kid and will never want to acknowledge his little bye-blow.

And so much of how smoothly it will work out depends, as you say, on DH accepting that he is the Father but acquiesces that kid has the right to know where he came from.

Good luck to you WTHDISUF!

WTHDISUF's picture

Thanks Buffalo. (We have suspected the same thing--wondered if somehow this guy does know and wasn't just a one night stand as she claimed. We wonder if he is married or in jail or works with her. We don't know; she controls it all. I HOPE he's an upstanding guy so that when SS8 looks for him, he'll be decent vs a travesty). DH doesn't want to know anything about it, doesn't want to discuss it ever-he's happy living the lie and wants to protect his role. I don't think he nor BM is thinking about what this will do to the child. All of the things he's doing to protect him and be his Father can go up in smoke and be for naught if they don't speak up soon. It could turn this kids whole life around. Sad

StickAFork's picture

How did the divorce get signed when there was a minor child and custody/support/visitation was never addressed???

They need to tell this kid the truth. Yesterday. NO GOOD will come from keeping it secret. Sadly, the kid will likely be madder at DH than BM. Sad

WTHDISUF's picture

They did address it and both opted to handle it on their own terms. It was, despite the circumstances, amicable and no contest. DH walked away from house and didn't want anything but a chance to see the child & to never be legally required to pay anything he didn't choose to pay. She agreed and that was it. Courts actually prefer this so they didn't require anything except for the two to sign a waiver that they declined court-ordered intervention.

As for poor child--yes I agree that he may be angrier at DH. This Summer, SS8 has been having 'fallouts' with BM. He told her she is selfish and that she doesn't spend time with him. (This is true). He told her his Dad (DH) spends lots of time with him. So when he learns DH is also lying to him, the Parent he was most reliant upon for quality time, he may be angrier. DH thinks he's going to say "oh, okay" and think nothing of it. This kid is sullen type, has some self-esteem issues and not really the 'go with the flow' type. I feel like we all are living in a blender, waiting for someone to push the Puree button! Gah.

BuffaloGal's picture

"we all are living in a blender, waiting for someone to push the Puree button!" What perfect description of your situation!

Kids can be very intuitive - he's asking a lot of questions, and he's asking YOU. Sounds like on some level, he's aware that he's being lied to, which could explain a lot of his behavior. I just feel so bad for you, girlfriend.

Orange County Ca's picture

Obviously the kid should have told at the youngest possible age in age appropriate language. That means right now or as soon as "Dad" sees the kid again. If the bio-father's name is on the birth certificate that's end game. He has all his rights until someone can prove he's a danger to the kid. It doesn't matter how poor or even if he has a criminal record other than child/sex offenses he can see his kid.

Don't let your husband waste family resources on a fight with the bio-father. He's reacting to the fact he did his wife back in the day more than anything and this can bring our the crazies. Tell him so if necessary straight out.

The past can't be changed but it can and should be faced right now. Force your husband to do what needs to be done by threatening to spill the beans yourself.

WTHDISUF's picture

Some days I do want to say it OCC. I just want to get it out there and start dealing with the damage as best as we can. Living under this stupid cloud, afraid to be alone with SS8 out of fear of being questioned, fear of some other kid pointing it out to him. Last year we had new neighbors move in and they were biracial couple. They had kids SS8 age and one of them was about 10 and she told him he didn't look biracial. But I really don't feel it's my place -it's no one's place but DH and BM and they are ignoring it even as he asks outright. Makes me feel guilty as hell when I have to lie to him and makes me angry when DH ignores him or changes the subject. Heck he even gets out of having to sit him down and tell him--when he asks, that's the perfect opening to start discussing it. But he won't. If SS8 asks me again, I'm telling DH I'm going to ask SS8 questions in return to see where his mind is about it all, to hear his full thoughts. That may help us gauge how he's going to take it. But I really don't want to do that. I just want them to do the right thing and tell him. I've even though about calling BM directly and tell her to get on with telling him! It's ridiculous that they leave something so important just floating around.