Do I have to pay child support if I'm not the biological father?

Q:

Do I have to pay child support if I'm not the biological father?

A:

In 1969, then-Governor Ronald Reagan signed the nation's first no-fault divorce bill. No-fault divorce soon spread to every state, eliminating the legal power of marriage to bind a couple together. Now, couples can dissolve a marriage for any reason. And they often do. In fact, from 1960 to 1980, the divorce rate more than doubled. Currently, 40 to 50% of marriages end in divorce.

With the increase in divorce rates, family courts have had to intervene to ensure that children are financially supported and their standard of living is maintained. The state also has a vested interest to ensure that children do not overwhelm state welfare programs or become wards of the state.

Child support is almost always ordered, generally with the state requiring the non-custodial parent to pay the custodial parent monthly child support payments. However, with the increase of multiple marriages, multiple sexual partners and stepparent adoption, the question about who pays child support can get a bit complicated.

Who pays child support?

While the biological parent is generally the parent required to pay child support to their own biological child, there are times when a stepparent or a non-biological parent may actually be required to make child support payments during the marriage or even after the marriage ends.

For example, there are currently 20 states that require stepparents to provide child support while the child resides in the home (i.e., Delaware, Hawaii, Iowa, Kentucky, Montana, Nebraska, Nevada, Utah, Washington, Maine, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota and Vermont). Some of these states, however, do not require child support from the stepparent unless the custodial parent needs help.

For example, the New York Family Court Act § 415 requires stepparents to be held legally responsible for supporting their stepchildren if the child is under the age of 21, they are receiving public assistance, or they are likely to need public assistance. The courts have held that although the primary responsibility for child support should be from the biological parents, “step-parents [should be] responsible if the support from the biological parents is insufficient to keep the child off public assistance.”

Although the responsibility to provide child support to a stepchild or non-biological child may end after the dissolution of the marriage or separation, there are additional circumstances under which a stepparent may be required to continue to pay support before and after marriage. Some states require continued stepparent support if the following exists:

1. The stepparent executes a written agreement agreeing to provide support to the child after the marriage.

(See Brannon v. Brannon, 261 Ga. 565 (1991).)

2. Under the doctrine of promissory estoppel.

Under this doctrine, courts have held that a stepparent who has presented himself as the father of the child cannot change his mind but can, instead, be held liable even if it’s discovered that he is not the child’s biological father.

In Georgia, in the case of Wright v. Newman, 266 Ga. 519 (1996), the court held that Bruce Wright had to continue to pay child support under the doctrine of promissory estoppel because he promised the child and mother that he would support them, he allowed the child to believe he was his father, he promoted himself as the father, and he allowed the mother and child to rely on his promise to pay support. Furthermore, he gave the child his surname and listed his name on the child’s birth certificate.

Note: For this doctrine to be enforced, the courts require three conditions: representation, detriment and reliance of support.

3. The stepparent adopts the child.

Stepparents may be allowed to adopt a child if the relationship with the other parent is terminated. Keep in mind that the decree of adoption is permanent. If you have adopted your spouse’s child, and you and the spouse later divorce, you must continue to pay child support until the child is emancipated or they reach the age of majority.

4. Disestablishment of paternity is denied.

There are certain times when a person may have believed that they were the father of a child and later learned that they were not the father. While the state may, under certain conditions, allow the father to petition to disestablish paternity, there are other times when the state might deny the petition. For example, petitions have been denied in Florida under the following conditions:

  • The presumed father signed an acknowledgement of paternity after he had good cause to believe that he was not the child’s biological father.
  • The presumed father failed to take a DNA test when ordered to take one by the court.
  • The presumed father promised to support the child even after he knew that he was not the biological father.
  • The presumed father consented to be named as the biological father of the child on the birth certificate.
  • The presumed father provided a sworn statement acknowledging paternity.
  • The presumed father married the child’s mother and voluntarily assumed parental and child support obligations after he knew that he was not the child’s father.

Bottom line: The obligation to pay child support by a non-biological parent or a stepparent differs by state. Talk to a family law attorney for more information about your state’s laws.

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