By T. Brandon Jaynes
What is family?
In the family law context, defining what makes up a “family” is getting harder and harder to do.
Grandparents are raising children, so are aunts and uncles; sometimes, even, stepmom or stepdad attempt to get custody of children. Sometimes a married man will have an affair and “the other woman” will end up pregnant; likewise, a married woman will have an affair and “the other man” will be the biological father.
In such instances, the law can be clear with respect to the rights of each of these three parties concerning the children. First and foremost, child support is always available. Once the biological father is determined (outside of marriage), which is often done either through admission or DNA testing, if contested, the child support award can be established. This is certainly true if the married, nonbiological father is not put on the birth certificate.
Child Support Is Biological
Child support amounts generally aren’t fought over, as Child Support Guidelines are in effect.
Essentially, the earnings of each party (or earning capacities) are put into a formula, and a number is given as the calculation. There are other numbers that are factored in, such as necessary day care costs, other children for which each, respective party is responsible, and a few other facts. (There are also mechanisms from deviating from the standard amount).
In this context, it generally doesn’t matter if the father is married to another woman; if the biological mother establishes he is the father, and she has custody, child support will generally be available. Also, because he is the biological father, he will have a constitutional right to his child, and could attempt to get custody, or at least visitation. When the role is reversed, with the married woman having the affair with the biological father, though, the rights of the biological father can be harder to establish and effectuate, especially if the non-biological father wants to be on the birth certificate.
The rights of the children, though, would not change.
Establishing Child Custody
In most cases, the standard for custody and visitation between parties is “best interest of the minor child,” and the courts look to a number of factors to determine custody, be it medical, emotional, physical, spiritual, financial, and so on. Before this however, this issue of who is the “legal father” must be resolved.
Sometimes, the legal father is clearly not the biological father. If the married, but non-biological, father doesn’t want the biological father involved, or if the biological mother doesn’t want the biological father involved, the biological father may have little recourse to see the child.
The law is constantly attempting to play “catch up” with the varying and evolving definitions of “family.” Initial changes wanted (and needed) to adapt to family members, other than the biological mother and father, raising children; that spread to non-family members (non-blood related). Then the law had to address those instances where a couple was married, but one of the members of the marriage had a child with a third-party.
The end result is that the law is not black and white and that’s a positive. It gives courts the flexibility to handle the complexities of today’s families and to do what is in the best interests of a child. However, that flexibility can also make it difficult to navigate through the system and why it becomes essential to work with a competent family law attorney who has experience with situations similar to yours.
T. Brandon Jaynes is an associate with King Law Offices, North Carolina. Jaynes specializes in family law, civil litigation, courtroom defense and estate planning.
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