When a married woman commits adultery and later has a child, the paternity of her child may become a legal issue. While many states presume that the married woman's husband is the child's legal father, the biological father may still be able to establish his paternity and gain parental rights. The rights of the unmarried biological father and the procedures to establish those rights vary from state to state.
Though paternity rights depend on each state's laws, many states' statutes include a presumption that the mother's husband at the time of the child's birth, or her husband within 300 days preceding the birth, is the child's legal father. A presumed father may automatically have parental rights under state law. A presumed father with legal rights also generally has an obligation to pay child support if the parents separate. The presumed or legal father keeps his parental rights unless he, the mother and the biological father voluntarily acknowledge the biological father's paternity of the child, or unless a court issues an order stating that he is not the child's legal father.
Biological Father's Rights
If a man believes that he is the biological father of a child born to a married woman, he may need to take action to establish his parental rights. If he does not take any legal action, such as by cooperating with the mother and her husband to sign an acknowledgment form or by filing a court case, many states will only confer rights on the mother's husband and prevent the biological father from gaining parental rights. A biological father should research the paternity laws of his own state or contact the local family law court to learn about the rights available to him under state law and the procedures required to gain those rights. Laws for individual states are summarized in "The Rights of Unmarried Fathers," published by the U.S. government's Child Welfare Information Gateway.
If the child's mother, the mother's husband, and the child's biological father all agree that the biological father should have parental rights, many states allow the three parties to sign a voluntary acknowledgment of paternity at the time of the child's birth. The mother's husband must usually complete a section of the acknowledgment form stating that he denies paternity of the child and consents to give up his parental rights. Once they have filed the completed acknowledgment form with the appropriate state agency, the biological father gains parental rights as well as an obligation to support the child financially. Whether the biological father's name will appear on the child's birth certificate, as opposed to the husband's name, depends on the timing of when the parties sign the acknowledgment form.
Action Initiated by One Parent
If not all three parties sign the form for a voluntary acknowledgment of paternity, the mother or biological father may need to initiate a separate legal action to identify the biological father and establish his rights. A biological father may need to open a case in state court to request a determination of the child's paternity. Depending on the laws of her state, the mother may also be able to open a paternity case to identify her child's biological father or request genetic testing through a state agency.