I had a child from an affair but my husband is raising the baby and is on the birth certificate, can the other man get custody of my child?
I practice law in Utah, so my answer is based upon Utah law.
To answer your question: Is it possible for the biological father to get custody (as opposed to visitation) of the child? Yes. Is it likely? In my opinion, no, unless it can be proven that you are unfit to have custody of the child.
Here’s a good link:
and here are some statutory references:
Subject to Part 3, Voluntary Declaration of Paternity Act, and Sections 78B-15-607 and 78B-15-609, a proceeding to adjudicate parentage may be maintained by:
(1) the child;
(2) the mother of the child;
(3) a man whose paternity of the child is to be adjudicated;
(4) the support-enforcement agency or other governmental agency authorized by other law;
(5) an authorized adoption agency or licensed child-placing agency;
(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor; or
(7) an intended parent under Part 8, Gestational Agreement.
(1) Paternity of a child conceived or born during a marriage with a presumed father, as described in Subsection 78B-15-204(1)(a), (b), or (c), may be raised by the presumed father, the mother, or a support enforcement agency at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.
(a) If the issue is raised prior to the adjudication, genetic testing may be ordered by the tribunal in accordance with Section 78B-15-608. Failure of the mother of the child to appear for testing may result in an order allowing a motherless calculation of paternity. Failure of the mother to make the child available may not result in a determination that the presumed father is not the father, but shall allow for appropriate proceedings to compel the cooperation of the mother. If the question of paternity has been raised in the pleadings in a divorce and the tribunal addresses the issue and enters an order, the parties are estopped from raising the issue again, and the order of the tribunal may not be challenged on the basis of material mistake of fact.
(b) If the presumed father seeks to rebut the presumption of paternity, then denial of a motion seeking an order for genetic testing or a decision to disregard genetic test results shall be based on a preponderance of the evidence.
(c) If the mother seeks to rebut the presumption of paternity, the mother has the burden to show by a preponderance of the evidence that it would be in the best interests of the child to disestablish the parent-child relationship.
(d) If a support enforcement agency seeks to rebut the presumption of parentage and the presumptive parent opposes the rebuttal, the agency’s request shall be denied. Otherwise, the denial of the agency’s motion seeking an order for genetic testing or a decision to disregard genetic test results shall be based on a preponderance of the evidence, taking into account the best interests of the child.
(2) For the presumption outside of marriage described in Subsection 78B-15-204(1)(d), the presumption may be rebutted at any time if the tribunal determines that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception.
(3) The presumption may be rebutted by:
(a) genetic test results that exclude the presumed father;
(b) genetic test results that rebuttably identify another man as the father in accordance with Section 78B-15-505;
(c) evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; or
(d) an adjudication under this part.
(4) There is no presumption to rebut if the presumed father was properly served and there has been a final adjudication of the issue.
A proceeding to determine parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child. The following actions may be taken before the birth of the child:
(1) service of process;
(2) discovery; and
(3) except as prohibited by Section 78B-15-502, collection of specimens for genetic testing.
(1) In a proceeding under this part, the tribunal shall issue a temporary order for support of a child if the order is appropriate and the individual ordered to pay support is:
(a) a presumed father of the child;
(b) petitioning to have his paternity adjudicated;
(c) identified as the father through genetic testing under Section 78B-15-505;
(d) an alleged father who has failed to submit to genetic testing;
(e) shown by clear and convincing evidence to be the father of the child; or
(f) the mother of the child.
(2) A temporary tribunal order may include provisions for custody and visitation as provided by other laws of this state.
The tribunal shall apply the following rules to adjudicate the paternity of a child:
(1) The paternity of a child having a presumed, declarant, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.
(2) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 78B-15-505 must be adjudicated the father of the child, unless an exception is granted under Section 78B-15-608.
(3) If the tribunal finds that genetic testing under Section 78B-15-505 neither identifies nor excludes a man as the father of a child, the tribunal may not dismiss the proceeding. In that event, the tribunal shall order further testing.
(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man properly excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277