Question: What happens if a Wife has a child that is not the biological child of her Husband?
First, I will assume that both the Husband and the Wife know that the child is not biologically his and that the husband and wife did not adopt the child.
This is a complicated situation since Florida law states that children born during a marriage are the legal children of the Husband. As a result, if the parties divorce the court must determine a time sharing schedule and establish a child support amount.
In most of the cases that I’ve handled where this situation arrises, neither the husband nor the wife expects or wants the husband to pay child support. The problem is the judge has very few options.
In order for the husband to avoid a child support obligation, he must have his legal rights to the child terminated. This can only be done if the court finds that the termination of parental rights is in the child’s best interests.
To show that the termination of parental rights is in the child’s best interest, the biological father needs to file an Affidavit of Paternity in the Wife’s divorce case. This affidavit needs to state the he is the biological father and that he intends to assume the role of father in the child’s life. Similarly, the Husband needs to file an Affidavit of non-Paternity where he states that he is not he biological father of the child.
Lastly, the divorce order needs to state that the parental rights of the husband are terminated. This termination of rights does not establish the legal rights of the biological father.
This whole situation in greatly complicated if the biological father can’t or won’t sign the affidavit. Essentially, the court will not allow the child to be legally fatherless, so the husband may be forced to pay child support. The situation is also greatly complicated if the husband does not want to give up his rights to the child.