Unfortunately, not everyone is faithful to his or her spouse. A husband could cheat on his wife, or vice versa. Sometimes, when the wife is the one who has an adulterous affair, the wife can become pregnant with the other man’s child. It can present a difficult situation for a Charleston custody lawyer, but an experienced attorney can help walk a client through this potential minefield.
In South Carolina, when the child is conceived during a lawful marriage, the child is presumed to be a child of the marriage. So, the husband is actually presumed to be the father of the child until proven otherwise. If the couple initiates an action for divorce, either the husband or the wife will need to prove to the judge that the husband isn’t the child’s father. The testimony of the parties is not enough. A Guardian ad Litem will be appointed to investigate the paternity and protect the interests of the child. The suspected biological father of the child will need to be made a party to the suit.
S.C. Code §63-17-10(E) states:”Whenever an action threatens to make a child illegitimate, the presumed legal father and the putative natural father must be made parties respondents to the action. A child under the age of 18 years must be represented by a Guardian ad Litem appointed by the Court. Neither the mother nor the presumed or putative father of the child may represent him as Guardian ad Litem.”
If the paternity of the child is uncontested, a hearing will need to take place where the mother, husband, the biological father, and the Guardian ad Litem put the paternity on the record. However, if the paternity of the child is contested, then a paternity test will be ordered to determine who the biological father is. S.C. Code Ann. §20-7-956(A) states that test results that show a 95% or higher statistical probability create a rebuttable presumption of paternity. Unless this presumption can be overcome, the results of the paternity test will determine who is the legal father of the child.
This process can be costly and time consuming. It’s definitely not a quick or simple legal process, and it’s best to consult a Charleston custody lawyer if you find yourself in this situation, whether you are the child’s mother, the mother’s husband, or the suspected biological father.
For more information, please see Fisher v. Tucker, 697 S.E.2d 548 (2010).