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When a woman is married and pregnant from another man.

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Milwaukee Attorney David Karp

Many times in family law cases, we see situations where a woman becomes pregnant while still married. The husband by law, is presumed to be the biological father of the child. It complicates the divorce. If either the mother or her husband raise the issue with the trial court that the husband may not be the father, most courts will put the brakes on the divorce process, order a guardian ad litem be appointed for the baby and order DNA testing for all three. Some courts even go one step further and order that the mother file a paternity action and have the real father adjudicated before the divorce can be completed.

What about the person who impregnated the wife? Do they have rights?  Can they be  determined to be the father? If this is an intact family, and the mother and her husband want to raise the child on their own, do their rights outweigh the third party’s rights to have paternity established? Does the child have a a right to know who its’ real biological father is?

sec. 767.863 FIRST APPEARANCE, addresses this issue:

767.863 (1m) PATERNITY ALLEGATION BY MALE OTHER THAN HUSBAND; WHEN DETERMINATION NOT IN BEST INTEREST OF CHILD. “In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman’s husband alleges that he, not the husband, is the child’s father, a party may allege that a judicial determination that a male other than the husband is not in the best interest of the child. If the court or a supplemental court commissioner under s. 757.675 (2) (g) determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed.”

So, while the third party who believes they may be the father can technically file a paternity action  while the woman is  married, the  parties (husband and wife) can argue that having paternity established is not in the best interest of the child. If there is such a finding that determining paternity is not in the child’s best interests under these circumstances, the court can disregard ordering DNA testing and must dismiss the case. That would preclude the third party from having themselves established as being the biological father of a child to a woman who was married at the time.

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