Separated husband, pregnant...

[arkera]

What is the name of your state (only U.S. law)? California

My husband and I have been separated for several years now. I have not talked or heard from him in that time. I've tried contacting his family for a divorce but I have no idea where he is or anything like that...

I'm pregnant. My birth control method failed and the father is long gone.

My friends are telling me that because I'm still married, that my MIA-husband would automatically be declared the father. I'm not worried that he'd want visitation or anything, but I really really don't want to make things more difficult than they already are. Is my MIA-husband going to be connected to my child at all?

Thank you,
A

 

[Ohiogal]

What is the name of your state (only U.S. law)? California

My husband and I have been separated for several years now. I have not talked or heard from him in that time. I've tried contacting his family for a divorce but I have no idea where he is or anything like that...

I'm pregnant. My birth control method failed and the father is long gone.

My friends are telling me that because I'm still married, that my MIA-husband would automatically be declared the father. I'm not worried that he'd want visitation or anything, but I really really don't want to make things more difficult than they already are. Is my MIA-husband going to be connected to my child at all?

Thank you,
A

Yes your husband is legally the father until you have paternity disestablished. And you most likely will NOT get a divorce until after you give birth. Your MIA-husband will have rights to visitation/custody and obligations such as child support.

 

[arkera]

Ok, I'm pretty sure I understand your reply and I appreciate your clarity, but I just want to make sure some things are clear.

My MIA-husband declared the marriage one of convenience and took off in the hopes of securing his green card after six months of marriage. We have not seen or talked to each other in two or three years now. We have had no contact, sexual or otherwise. There is NO WAY he is the father.

I will not include anything about MIA-husband on the birth certificate.

Does he still default as the father of a child he has no actual paternal link to? Just because we're legally still married without as much as a legal separation?

A

 

[Antigone*]

Ok, I'm pretty sure I understand your reply and I appreciate your clarity, but I just want to make sure some things are clear.

My MIA-husband declared the marriage one of convenience and took off in the hopes of securing his green card after six months of marriage. We have not seen or talked to each other in two or three years now. We have had no contact, sexual or otherwise. There is NO WAY he is the father.

I will not include anything about MIA-husband on the birth certificate.

Does he still default as the father of a child he has no actual paternal link to? Just because we're legally still married without as much as a legal separation?

A

You don't have to include the MIA father on the birth certificate. He is still legally dad.

 

[Proserpina]

Ok, I'm pretty sure I understand your reply and I appreciate your clarity, but I just want to make sure some things are clear.

My MIA-husband declared the marriage one of convenience and took off in the hopes of securing his green card after six months of marriage. We have not seen or talked to each other in two or three years now. We have had no contact, sexual or otherwise. There is NO WAY he is the father.

I will not include anything about MIA-husband on the birth certificate.

Does he still default as the father of a child he has no actual paternal link to? Just because we're legally still married without as much as a legal separation?

A

Yes. And if you lie - you MUST be honest about these things - you can get into an awful lot of trouble.

It would be much easier to simply get divorced and have paternity disestablished as part of the proceedings.

 

[arkera]

I'm a little confused. I don't intend to lie about anything, and MIA-husband is a completely different person than the now disappeared father of my child.

My question is does my HUSBAND have rights/obligations to my child that is absolutely not his in any way shape or form biologically?

 

[Proserpina]

I'm a little confused. I don't intend to lie about anything, and MIA-husband is a completely different person than the now disappeared father of my child.

My question is does my HUSBAND have rights/obligations to my child that is absolutely not his in any way shape or form biologically?

Yes, because he is LEGALLY the child's father. Technically he could file for custody, visitation and child support.


His legal paternity needs to be disestablished. Biology doesn't enter the equation.

 

[arkera]

Ok, that's about as clear as it gets. I've just mentioned this to other people in the course of my daily life and they tell me that there is no way that this could be true. But your answers are clear and consistent... not that I expected they wouldn't be... just trying to make sure you have all the facts in case that changes everything.

As an aside... would it make any difference if I had been impregnated through a fertility clinic? Where there are medical records? But it seems that would be a moot point if the biology doesn't matter....

I really appreciate it. Thanks again.
A

 

[Silverplum]

Ok, that's about as clear as it gets. I've just mentioned this to other people in the course of my daily life and they tell me that there is no way that this could be true.

Are these people attorneys? Study the law? Or just going by what they think?

But your answers are clear and consistent... not that I expected they wouldn't be... just trying to make sure you have all the facts in case that changes everything.

All the facts are good.

As an aside... would it make any difference if I had been impregnated through a fertility clinic? Where there are medical records?

You weren't, however. That legal situation has its own backside covered.

But it seems that would be a moot point if the biology doesn't matter....

I really appreciate it. Thanks again.

 

[LdiJ]

Ok, that's about as clear as it gets. I've just mentioned this to other people in the course of my daily life and they tell me that there is no way that this could be true. But your answers are clear and consistent... not that I expected they wouldn't be... just trying to make sure you have all the facts in case that changes everything.

As an aside... would it make any difference if I had been impregnated through a fertility clinic? Where there are medical records? But it seems that would be a moot point if the biology doesn't matter....

I really appreciate it. Thanks again.
A

While I am not going to give an answer that is inconsistant with the others, I am going to clarify some matters.

If your husband is not on the BC, while he would technically be the legal father of the child under the letter of the law, he would not be the legal father of the child for practical purposes.

There is nothing that would actually tie him to the child without his name being on the BC.

Nevertheless, when you get divorced it will be necessary to address the issue of the child and disestablish, formally and legally, his paternity.

And, should he choose to do so, he could file for custody and visitation of the child, again, because he is your husband and therefore the legal father of the child. Again, though if that happened, that would mean that he would have to make contact with you, via service if nothing else, and that would give you the opportunity to serve him for divorce and disestablish his paternity.

The laws were written that way to ensure that any child born of a married woman could not be labeled a *******, or disavowed by the woman's husband. In this day of DNA, its possible to definitively determine whether or not someone is the father of a child, so the issue is not permanent. It simply makes a divorce more complicated...and therefore more expensive.

It probably would be in your best interest to get a consult with a local attorney (I am not suggesting that you necessarily hire one at this point, just consult with one) to get a clearer picture of how things will stand for you.

 

[arkera]

If your husband is not on the BC, while he would technically be the legal father of the child under the letter of the law, he would not be the legal father of the child for practical purposes.

There is nothing that would actually tie him to the child without his name being on the BC.

Ok, good to tie up loose ends, I agree... but could you clarify these two points? What do you mean for practical purposes? And is there an appreciable difference in my favor since his name will not be on the BC?

If he were to file for custody for example, how likely would a judge look at our case and tell him he's an idiot... if not in so few words... ?

Could I force him into cooperating with a divorce with threats of child support? I mean that sounds really lame (and an empty threat) but would I have a leg to stand on? I don't care about money and wouldn't dream of pushing that through, I just want to give him a little incentive to help me help us out of this marriage...

A

 

[Proserpina]

Ok, good to tie up loose ends, I agree... but could you clarify these two points? What do you mean for practical purposes? And is there an appreciable difference in my favor since his name will not be on the BC?

Meaning that Dad will have to file to establish visitation/custody etc. It's not a given. The only thing he doesn't have to do is file to establish paternity via DNA because he's already the presumed father.

If he were to file for custody for example, how likely would a judge look at our case and tell him he's an idiot... if not in so few words... ?

At the moment? The judge cannot do that. He's legally the father. He has as much right to your child as you do, however messed up that may seem to you.

Could I force him into cooperating with a divorce with threats of child support? I mean that sounds really lame (and an empty threat) but would I have a leg to stand on? I don't care about money and wouldn't dream of pushing that through, I just want to give him a little incentive to help me help us out of this marriage...

A

I have a quick question for you - did you sponsor him using the I-864?

What is his current immigration status?

 

[arkera]

We started the sponsoring paperwork but we got into too many arguments and the whole "convenience" thing came out. I stopped cooperating. I have no idea what his status is. I think he's a permanent resident.

 

[Proserpina]

We started the sponsoring paperwork but we got into too many arguments and the whole "convenience" thing came out. I stopped cooperating. I have no idea what his status is. I think he's a permanent resident.

Do you have any idea how he would have obtained residency without your sponsorship? Because if you actually submitted that I-864 Affidavit Of Support form and he obtained residency based upon your marriage - regardless of what happened afterwards - you may have another problem on your hands.

I'm not being obtuse, but unless I know if you did or not it doesn't make sense to go down that particular avenue

 

[arkera]

Do you have any idea how he would have obtained residency without your sponsorship? Because if you actually submitted that I-864 Affidavit Of Support form and he obtained residency based upon your marriage - regardless of what happened afterwards - you may have another problem on your hands.

I'm not being obtuse, but unless I know if you did or not it doesn't make sense to go down that particular avenue

Totally understood... no I think he came over here like 20 years ago with his family... he's never had a problem getting a job and going to school or anything, he was just chomping at the bit for his citizenship... something his sister already achieved.