Q. My wife had two children before we were married. They were 3 and 4 when they moved in with me 10 years ago. We are now getting divorced because my wife cheated on me with our neighbor – she recently had a baby which is not mine – DNA confirmed it. She has admitted our neighbor is the father and moved in with him. She filed for divorce and listed all three children as mine and is asking for child support. Clearly Justin and Jason are not mine – they spend every other weekend with their dad who makes very little money and pays very little child support.
She says I have to support the new baby because she is “a child of the marriage” and says I am a de facto parent of all of the children, so I have to pay for all of them. Is she right or can I fight this?
A. You should hire an experienced family law attorney because de facto parentage can get complicated. The short answer is a de facto parent is someone who has raised children who are not their birth /adoptive children serving in the role of a parent for a significant period of the child’s life. A de facto parent often wants to maintain that parent role for the children after the end of a relationship. If you are deemed a de facto parent by a judge, you would have rights to parenting time with the children and, yes, you would pay child support.
On these facts, Jason and Justin are not your de facto children. They have parenting time with their father, and he pays child support. Your wife does not get to elect which father is more qualified based on income levels and ability to maximize child support. If you are interested in maintaining a relationship with them given how long they lived with you, when the divorce is over you can ask to spend time with them – if she says no, you can always ask their father. You can buy them gifts but keep these arrangements voluntary and out of court.
As for the new child, answer the divorce complaint stating that there are no children born of the marriage. While the baby is presumed to be a child of the marriage, that presumption can be rebutted. File a motion for a paternity test so there is no question about the testing you did on your own. Once you are formally deemed not to be her father, you will have no rights or responsibilities to the new baby.
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