When a relationship breaks down and the trust is gone, a couple facing divorce may begin to question the very foundations of their relationship. In some cases, they may actively seek validation for their decision to leave. If either party has been unfaithful in the past, some may question whether the children they have raised together are biologically theirs.
There are several major implications to this train of thought. First, the children should be shielded as far as possible from the harmful effects of a divorce and never made to feel at fault. When a father begins to question whether the children were ever truly his, there is a real risk that should they find out, the children will rightfully feel rejected. Second, when it comes to custody agreements, the court of New Mexico believes it is in the child’s best interests to spend time with both of their parents and for their parents to share the costs of raising their children. When paternity is disputed, it can be very difficult to enact a custody arrangement that meets the needs of all parties. Finally, questioning biological paternity can extend the divorce process, adding time and cost to what is already an emotionally fraught situation. Attorneys who are experienced in family law in Albuquerque may recommend that this type of dispute is handled through mediation in order to control costs and allow each party to express their concerns openly and honestly in a safe environment.
Proving paternity
The first step in any paternity dispute is to submit DNA for genetic testing. This will establish whether the child is the biological offspring of the proposed father. This simple process involves taking cheek swabs from both the father and child, which are then assessed in a laboratory to determine whether a biological connection exists between them. If paternity is proven, the divorce process can continue unimpeded and a custody agreement will be developed to suit the needs of all parties. It will take into account the age of the children affected, their preferences if they are old enough to express them, the extent to which they are settled at home and in school, and the ability of each parent to care for them and provide them with a stable upbringing. Financial contributions will be set by the court based on the length of the marriage; the financial stability of each parent; the costs of raising, educating and caring for the children; and the amount of physical custody that each parent will have. If a DNA test proves that the father’s doubts were well founded and the child is not biologically his, a troublesome situation arises as New Mexico law does not provide for rescission of paternity once it has been established [1]. Paternity in New Mexico can be established by the child being born in wedlock, by the father’s name being on the child’s birth certificate, by voluntarily accepting paternity, or by their actions. This means that paternity can be established by welcoming the child into their life and holding them out publicly as their biological child.
How to proceed if biological paternity is disproven
It is not advisable for a man to refuse to engage in custody discussions during or following a divorce due to a late discovery that the children that he has raised as his own bear no biological connection to him. Not only will this behavior disadvantage the children, but failure to cooperate will be viewed by the courts in a poor light. It is better to engage with the situation and arrive at a mutually acceptable outcome that protects the needs of the children and recognizes the desires of the man for future contact. Once paternity is disproven, an attorney may make a case for reduced levels of spousal support and for child support payments to be discretionary rather than mandated, and based on the desire of the father to remain a part of the childrens’ lives post-discovery. A historic case known as Tedford v. Gregory [2] may provide a precedent or argument for child support based on the events of the case in which the legitimate father of a child was later identified and required to pay retrospective child support dating back to the child’s birth, in addition to reimbursing the assumed father for some of the costs that he had wrongfully incurred over the years since divorcing the child’s mother. When paternity is disproven, children may be unable to inherit under intestacy laws. Should the man wish for the children to be beneficiaries of his estate, he will need to expressly state this desire in his last will and testament. There are many implications to disproving biological paternity. Each case is different and highly sensitive, so it is a good idea to seek advice from a law firm that is experienced in all areas of family law. At the Law Office of Dorene A. Kuffer, we can help you make sense of the situation and arrive at a mutually acceptable outcome.
[1] https://www.clasp.org/sites/default/files/public/resources-and-publications/publication-1/0111.pdf
[2] https://www.clasp.org/sites/default/files/public/resources-and-publications/publication-1/0118.pdf