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Getting Divorced When The Husband Is Not The Biological Father

by sjackson  on September 1, 2020 under 

In Georgia when a man and woman are married and a child is born, the husband is assumed to be the legal and biological father of that child. If the child's parents decide to divorce, then the parents of the child must determine child custody and child support decisions. Divorce is stressful in any case, but in the situation when the husband is not the biological father of their child there are additional complications and even more stress. Protecting the child is a key consideration during a contested divorce that is decided in court, as is determining and protecting the rights of the child's legal and biological father.

There are many different family situations that can result in a husband not knowing he is not his child's biological father:

  • The father did not know he was not his child's biological father until divorce proceedings began.
  • The parents lived far apart when the child was conceived and born.
  • The parents were separated but not legally divorced when the child was conceived.
  • The mother did not know the husband was not the biological father.

It's Complicated!

In some situations, the husband may not want to pay child support for a child who is not his biological child. In other cases, the legal father may fight for his father's rights even though the child is not biologically related to him.

Family law can be complicated because families are complicated - and even at times messy! Family law in Georgia requires a judge to consider the best interest of the child. In many cases, the child has a long-going relationship with their father and may not know he is not their biological father. In divorce cases concerning children, an attorney or guardian ad litem can be assigned by a judge to represent the child and ensure that their rights and best interests are safeguarded.   

Why It's Important to Establish Paternity

During a divorce many decisions about a child's future are based on the child's legal father:

1. Child Support 
In Georgia, a man who is married to a woman when she conceives or gives birth to a child is presumed to be the biological father of that child and will be legally recognized as the father of the child. Even if you are not your child's biological father if the parents divorce the legal father may still have to pay child support if he has raised and supported the child or if he acknowledged the child as his own.

Both parents are required by Georgia law to provide support of their child until the child reaches 18 years, or finishes high school, but not over 20 years. The parent who is awarded physical custody of a child, or with whom the child lives with the majority of the time, can be awarded regular child support payments from a parent to provide for the child’s wellbeing.

2. Father's Rights
The husband in a marriage is believed to be the father of any child born during that marriage under Georgia law. Georgia family law differentiates between a legal father and the biological father. If a man is getting divorced and his wife claims he should not have visitation or child custody rights because he is not the child's biological father, a judge will determine the father's rights and what is the best interest of the child based on his review of key factors on the child's parenting thus far.

After a divorce, the husband may retain father's rights to visitation, custody and parenting decisions even if it is determined that he is not the child's biological father.

3. Parental Responsibilities. 
If a child's legal father requests a DNA test and proves he is not the biological father, a judge has the discretion to legally terminate his parental rights. If a divorce case is involved and if the man is legally declared to not be the biological father, the husband may still be responsible for child support payments, based on the fact that he had previously supported the child and acknowledged the child.

If the child's biological father wants his parental rights legitimized, the judge will consider the best ways to protect the child.

Every family is unique, and there is no one way to resolve a complicated divorce where the husband is not the child's biological father. An experienced Georgia family law attorney can assess your situation and advise you on the best way to resolve your case and protect both your rights and your child's rights.

Family Law Experience You Can Trust

Contact Attorney Sharon Jackson today regarding your family law issue.

Children who live with both parents and discover that their dad is not their biological father may find divorce to be extra difficult. Experienced and strong representation in a Georgia parental and child custody dispute is essential to a favorable result that fills the needs of the parent and child. By working with a dedicated family law attorney, steps can be taken to protect the child’s best interest.

Call Attorney Sharon Jackson today at (678)436-3636 to schedule an initial consultation and learn how we can help you. You can also contact us online to discuss your case.

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