Legal Question in Family Law in Virginia
Divorce, adultery, and children...
In short my wife had an affair on me twice. She moved out and began living with another man. We have a 5 year old son together and she now has a daughter who is under 1 with this other man that she is now living with. She began seeking custody of our son along with child support before a divorce was filed. This has been granted and time split between the two of us. The recent child she has had with the other man was listed as father ''unknown'' on the birth certificate but has been given the other man's last name. Now the situation is she has recently been arrested on theft charges and her family has brought up the question as to who has parental rights over the child that she did not have with me. Listed as unknown and still married to me, would I be considered as this child's father or will the man she has lived with; keeping in mind the child has been given the other man's last name. Is this automatically him, me, or only left up to a paternity test? The affair is certain the paternity is NOT mine on this second child; only the first! How is the child legally seen? Mine or his?
Or does it even matter that there is not a divorce yet or not?
1 Answer from Attorneys
Re: Divorce, adultery, and children...
This is a little complicated, but the basis issues are these:
Because you and your wife are still married, there is a legal presumption that you are the father of the second child. In the absence of a court order to the contrary, you are considered the "legal" father. However, you, or the natural father, or both of you, could prove otherwise, and overcome the presumption, usually through a paternity test.
Does that help get you started?
Good luck.
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