family-law
Do men lose custody of children if they are found to not be the biological father?
<p>My nephew is 2 years old, and my brother just found out the mother has been cheating for at least two years. He wants a paternity test, but is scared he will not be the father. He is a fantastic father! If he is not the father, would he still be able to be involved in the child's life?</p>

<p>This depends on your state, but most likely they would stay the father.</p>

<p>Many states abide by the Uniform Parentage Act, and part of that act states that if a man has been acting in the role of Father for a long enough period (I think 18 months, but not certain) then he is considered the legal father regardless of parentage.  Similarly many states say if he was married to the mother he would be considered the legal father regardless of parentage.  If you want an exact legal response I would ask on the <a href="https://law.stackexchange.com/">Law StackExchange</a>, including marital status and the state they're in, but most likely he will legally have a right as father if he wants it.</p>

<p>If the mother is interested in the well-being of the child she would want him involved in the child's life anyways.  Even if they separate they can hopeful agree on shared custody for the sake of the child without needing any legal discussions to come into place.  If he separates from her without antagonizing her and makes it clear he wants to play a role in the child's life and set rules for doing that there is a good chance this can be settled without any lawyers or legal discussions to begin with!</p>

<p>To a large degree, and I'm specifically staying away from the legal questions, it will depend on whether your brother stays married and in the home. If they are still a unified family, he will be around the child at bare minimum half the time (if the biological father was ridiculously given 1/2 custody) and more likely closer to 100% of the time regardless of parentage.</p>

<p>If your brother is separating or getting divorced, he will spend a lot less time with the child, no matter what a judge decides</p>

<p><strong>I don't think getting a paternity test does anybody any good.</strong> I certainly empathize with his plight, but it may be a knee-jerk reaction. Will there be a difference in his parenting time if he is not the biological father? Only if the biological father is found, who wants custodial rights, and is willing to spend a ton of money on legal fees. And what does your sister-in-law want?</p>

<p>In Colorado, the answer would be no. </p>

<p>He would have standing and he would be on an essentially equal footing (i.e. according to the best interests of the child). </p>

<p>But, there would still be good reasons not to contest paternity if he wants to be a father to the child, and I am not convinced that Colorado follows the predominant, majority or plurality rule on this point, although there are certainly many other states that follow the same rule (Colorado's rule originates with the Uniform Marriage and Divorce Act that a number of states adopted when they switched to no fault divorce, and other states copied its substantive provisions over the years.)</p>

<p>This said, if he is recognized as the birth father on the birth certificate for a sufficient period of time, or was married to the child's mother when the child was born (or was otherwise presumed to be the father, which can happen in a variety of ways), the presumption that he is the father will become incontestable after a period of time (five years in Colorado per Section 19-4-107(1)(b) of the Colorado Revised Statutes, regardless of the existence or absence of a genetic relationship) for purposes of custody and child support.</p>

<p>There is no good reason to contest paternity of a child you want to be a father for, so long as you don't mind being exposed to child support liability in the event of a split-up with the mother of the child, and a paternity test result is not necessary (legally anyway) to break up with a girlfriend or divorce a wife. </p>

<p>Also, while in theory, a lack of paternity shouldn't affect parental responsibility decisions in states like Colorado where the statute says as much, in practice, it does impair your likelihood of being awarded parental responsibilities and a finding a non-paternity adds another person with standing to assert parental responsibilities into any parental responsibility proceeding.</p>

<p>In Colorado, anyone who has resided with and supported a child for at least six months ending not more than six months before a parenting responsibilities proceeding has standing, in theory on an equal footing, with anyone else who has standing pursuant to Section 14-10-123(1)(c) of the Colorado Revised Statutes. The pertinent part of the statute states:</p>

<blockquote>
  <p>(1)   A proceeding concerning the allocation of parental
  responsibilities is commenced in the district court or as otherwise
  provided by law:</p>
  
  <p>(a)   By a parent: (I)    By filing a petition for dissolution or legal
  separation; or (II)   By filing a petition seeking the allocation of
  parental responsibilities with respect to a child in the county where
  the child is permanently resident or where the child is found; or</p>
  
  <p>(b)   By a person other than a parent, by filing a petition seeking the
  allocation of parental responsibilities for the child in the county
  where the child is permanently resident or where the child is found,
  but only if the child is not in the physical care of one of the
  child's parents;</p>
  
  <p>(c)   By a person other than a parent who has had the physical care of a
  child for a period of one hundred eighty-two days or more, if such
  action is commenced within one hundred eighty-two days after the
  termination of such physical care; or</p>
  
  <p>(d)   By a parent or person other than a parent who has been granted
  custody of a child or who has been allocated parental responsibilities
  through a juvenile court order entered pursuant to section
  19-1-104(6), C.R.S., by filing a certified copy of the juvenile court
  order in the county where the child is permanently resident. Such
  order shall be treated in the district court as any other decree
  issued in a proceeding concerning the allocation of parental
  responsibilities.</p>
</blockquote>

<p>Colorado is not the only state with such a law, but I wouldn't be comfortable saying that this is the majority rule or the predominant rule either. (Grandparents can also make claims to parental responsibilities per Section 14-10-123.3 of the Colorado Revised Statutes, even if they don't satisfy any of those clauses above.)</p>

<p>Parental responsibilities cases are resolved amongst people who have standing in accordance with the best interests of the child standard in Colorado is codified at Section 14-10-124 of the Colorado Revised Statutes, which provides much less definitive guidance than the ample verbiage suggests:</p>

<blockquote>
  <p>(1)   Legislative declaration. While co-parenting is not appropriate in
  all circumstances following dissolution of marriage or legal
  separation, the general assembly finds and declares that, in most
  circumstances, it is in the best interest of all parties to encourage
  frequent and continuing contact between each parent and the minor
  children of the marriage after the parents have separated or dissolved
  their marriage. In order to effectuate this goal when appropriate, the
  general assembly urges parents to share the rights and
  responsibilities of child-rearing and to encourage the love,
  affection, and contact between the children and the parents.
  (1.3) Definitions. For purposes of this section and section
  14-10-129(2) (c), unless the context otherwise requires:</p>
  
  <p>(a)   "Domestic violence" means an act of violence or a threatened act
  of violence upon a person with whom the actor is or has been involved
  in an intimate relationship, and may include any act or threatened act
  against a person or against property, including an animal, when used
  as a method of coercion, control, punishment, intimidation, or revenge
  directed against a person with whom the actor is or has been involved
  in an intimate relationship.</p>
  
  <p>(b)   "Intimate relationship" means a relationship between spouses,
  former spouses, past or present unmarried couples, or persons who are
  both parents of the same child regardless of whether the persons have
  been married or have lived together at any time.</p>
  
  <p>(c)   "Sexual assault" has the same meaning as set forth in section
  19-1-103 (96.5), C.R.S.</p>
  
  <p>(1.5) Allocation of parental responsibilities. The court shall
  determine the allocation of parental responsibilities, including
  parenting time and decision-making responsibilities, in accordance
  with the best interests of the child giving paramount consideration to
  the child's safety and the physical, mental, and emotional conditions
  and needs of the child as follows:</p>
  
  <p>(a)   Determination of parenting time. The court, upon the motion of
  either party or upon its own motion, may make provisions for parenting
  time that the court finds are in the child's best interests unless the
  court finds, after a hearing, that parenting time by the party would
  endanger the child's physical health or significantly impair the
  child's emotional development. In addition to a finding that parenting
  time would endanger the child's physical health or significantly
  impair the child's emotional development, in any order imposing or
  continuing a parenting time restriction, the court shall enumerate the
  specific factual findings supporting the restriction and may enumerate
  the conditions that the restricted party could fulfill in order to
  seek modification in the parenting plan. When a claim of child abuse
  or neglect, domestic violence, or sexual assault where there is also a
  claim that the child was conceived as a result of the sexual assault
  has been made to the court, or the court has reason to believe that a
  party has committed child abuse or neglect, domestic violence, or
  sexual assault where there is also a claim that the child was
  conceived as a result of the sexual assault, prior to determining
  parenting time, the court shall follow the provisions of subsection
  (4) of this section. In determining the best interests of the child
  for purposes of parenting time, the court shall consider all relevant
  factors, including:</p>
  
  <p>(I)   The wishes of the child's parents as to parenting time;</p>
  
  <p>(II)  The wishes of the child if he or she is sufficiently mature to
  express reasoned and independent preferences as to the parenting time
  schedule;</p>
  
  <p>(III) The interaction and interrelationship of the child with his or
  her parents, his or her siblings, and any other person who may
  significantly affect the child's best interests;</p>
  
  <p>(IV)  The child's adjustment to his or her home, school, and community;</p>
  
  <p>(V)   The mental and physical health of all individuals involved, except
  that a disability alone shall not be a basis to deny or restrict
  parenting time;</p>
  
  <p>(VI)  The ability of the parties to encourage the sharing of love,
  affection, and contact between the child and the other party; except
  that, if the court determines that a party is acting to protect the
  child from witnessing domestic violence or from being a victim of
  child abuse or neglect or domestic violence, the party's protective
  actions shall not be considered with respect to this factor;</p>
  
  <p>(VII) Whether the past pattern of involvement of the parties with the
  child reflects a system of values, time commitment, and mutual
  support;</p>
  
  <p>(VIII)    The physical proximity of the parties to each other as this
  relates to the practical considerations of parenting time;</p>
  
  <p>(IX) and (X)  Repealed.</p>
  
  <p>(XI)  The ability of each party to place the needs of the child ahead
  of his or her own needs.</p>
  
  <p>(b)   Allocation of decision-making responsibility. The court, upon the
  motion of either party or its own motion, shall allocate the
  decision-making responsibilities between the parties based upon the
  best interests of the child. In determining decision-making
  responsibility, the court may allocate the decision-making
  responsibility with respect to each issue affecting the child mutually
  between both parties or individually to one or the other party or any
  combination thereof. When a claim of child abuse or neglect or
  domestic violence has been made to the court, or the court has reason
  to believe that a party has committed child abuse or neglect, domestic
  violence, or sexual assault where there is also a claim that the child
  in question was conceived as a result of the sexual assault, prior to
  allocating decision-making responsibility, the court shall follow the
  provisions of subsection (4) of this section. In determining the best
  interests of the child for purposes of allocating decision-making
  responsibilities, the court shall consider, in addition to the factors
  set forth in paragraph (a) of this subsection (1.5), all relevant
  factors including:</p>
  
  <p>(I)   Credible evidence of the ability of the parties to cooperate and
  to make decisions jointly;</p>
  
  <p>(II)  Whether the past pattern of involvement of the parties with the
  child reflects a system of values, time commitment, and mutual support
  that would indicate an ability as mutual decision makers to provide a
  positive and nourishing relationship with the child;</p>
  
  <p>(III) Whether an allocation of mutual decision-making responsibility
  on any one or a number of issues will promote more frequent or
  continuing contact between the child and each of the parties.</p>
  
  <p>(IV) and (V)  Repealed.</p>
  
  <p>(1.7) Pursuant to section 14-10-123.4, children have the right to have
  the determination of matters relating to parental responsibilities
  based upon the best interests of the child. In contested hearings on
  final orders regarding the allocation of parental responsibilities,
  the court shall make findings on the record concerning the factors the
  court considered and the reasons why the allocation of parental
  responsibilities is in the best interests of the child.</p>
  
  <p>(2)   The court shall not consider conduct of a party that does not
  affect that party's relationship to the child.</p>
  
  <p>(3)   In determining parenting time or decision-making responsibilities,
  the court shall not presume that any person is better able to serve
  the best interests of the child because of that person's sex.</p>
  
  <p>(3.5) <strong>A request by either party for genetic testing shall not
  prejudice the requesting party in the allocation of parental
  responsibilities pursuant to subsection (1.5) of this section.</strong></p>
  
  <p>(4)   (a) When a claim of child abuse or neglect, domestic violence, or
  sexual assault where there is also a claim that the child was
  conceived as a result of the sexual assault has been made to the
  court, or the court has reason to believe that a party has committed
  child abuse or neglect, domestic violence, or sexual assault that
  resulted in the conception of the child, prior to allocating parental
  responsibilities, including parenting time and decision-making
  responsibility, and prior to considering the factors set forth in
  paragraphs (a) and (b) of subsection (1.5) of this section, the court
  shall consider the following factors:</p>
  
  <p>(I)   Whether one of the parties has committed an act of child abuse or
  neglect as defined in section 18-6-401, C.R.S., or as defined under
  the law of any state, which factor must be supported by a
  preponderance of the evidence. If the court finds that one of the
  parties has committed child abuse or neglect, then it shall not be in
  the best interests of the child to allocate mutual decision-making
  with respect to any issue over the objection of the other party or the
  legal representative of the child.</p>
  
  <p>(II)  Whether one of the parties has committed an act of domestic
  violence, has engaged in a pattern of domestic violence, or has a
  history of domestic violence, which factor must be supported by a
  preponderance of the evidence. If the court finds by a preponderance
  of the evidence that one of the parties has committed domestic
  violence:</p>
  
  <p>(A)   It shall not be in the best interests of the child to allocate
  mutual decision-making responsibility over the objection of the other
  party or the legal representative of the child, unless the court finds
  that there is credible evidence of the ability of the parties to make
  decisions cooperatively in the best interest of the child in a manner
  that is safe for the abused party and the child; and (B)  The court
  shall not appoint a parenting coordinator solely to ensure that mutual
  decision-making can be accomplished.</p>
  
  <p>(III) Whether one of the parties has committed an act of sexual
  assault resulting in the conception of the child, which factor must be
  supported by a preponderance of the evidence. If the court finds by a
  preponderance of the evidence that one of the parties has committed
  sexual assault and the child was conceived as a result of the sexual
  assault, there is a rebuttable presumption that it is not in the best
  interests of the child to allocate sole or split decision-making
  authority to the party found to have committed sexual assault or to
  allocate mutual decision-making between a party found to have
  committed sexual assault and the party who was sexually assaulted with
  respect to any issue.</p>
  
  <p>(IV)  If one of the parties is found by a preponderance of the evidence
  to have committed sexual assault resulting in the conception of the
  child, whether it is in the best interests of the child to prohibit or
  limit the parenting time of that party with the child.</p>
  
  <p>(b)   The court shall consider the additional factors set forth in
  paragraphs  (a) and (b) of subsection (1.5) of this section in light
  of any finding of child abuse or neglect, domestic violence, or sexual
  assault resulting in the conception of a child pursuant to this
  subsection (4).</p>
  
  <p>(c)   If a party is absent or leaves home because of an act or
  threatened act of domestic violence committed by the other party, such
  absence or leaving shall not be a factor in determining the best
  interests of the child.</p>
  
  <p>(d)   When the court finds by a preponderance of the evidence that one
  of the parties has committed child abuse or neglect, domestic
  violence, or sexual assault resulting in the conception of the child,
  the court shall consider, as the primary concern, the safety and
  well-being of the child and the abused party.</p>
  
  <p>(e)   When the court finds by a preponderance of the evidence that one
  of the parties has committed child abuse or neglect, domestic
  violence, or sexual assault resulting in the conception of the child,
  in formulating or approving a parenting plan, the court shall consider
  conditions on parenting time that ensure the safety of the child and
  of the abused party. In addition to any provisions set forth in
  subsection (7) of this section that are appropriate, the parenting
  plan in these cases may include, but is not limited to, the following
  provisions:</p>
  
  <p>(I)   An order limiting contact between the parties to contact that the
  court deems is safe and that minimizes unnecessary communication
  between the parties;</p>
  
  <p>(II)  An order that requires the exchange of the child for parenting
  time to occur in a protected setting determined by the court;</p>
  
  <p>(III) An order for supervised parenting time;</p>
  
  <p>(IV)  An order restricting overnight parenting time;</p>
  
  <p>(V)   An order that restricts the party who has committed domestic
  violence, sexual assault resulting in the conception of the child, or
  child abuse or neglect from possessing or consuming alcohol or
  controlled substances during parenting time or for twenty-four hours
  prior to the commencement of parenting time;</p>
  
  <p>(VI)  An order directing that the address of the child or of any party
  remain confidential;</p>
  
  <p>(VII) An order that imposes any other condition on one or more parties
  that the court determines is necessary to protect the child, another
  party, or any other family or household member of a party; and</p>
  
  <p>(VIII)    An order that requires child support payments to be made
  through the child support registry to avoid the need for any related
  contact between the parties and an order that the payments be treated
  as a nondisclosure of information case.</p>
  
  <p>(f)   When the court finds by a preponderance of the evidence that one
  of the parties has committed domestic violence, the court may order
  the party to submit to a domestic violence evaluation. If the court
  determines, based upon the results of the evaluation, that treatment
  is appropriate, the court may order the party to participate in
  domestic violence treatment. At any time, the court may require a
  subsequent evaluation to determine whether additional treatment is
  necessary. If the court awards parenting time to a party who has been
  ordered to participate in domestic violence treatment, the court may
  order the party to obtain a report from the treatment provider
  concerning the party's progress in treatment and addressing any
  ongoing safety concerns regarding the party's parenting time. The
  court may order the party who has committed domestic violence to pay
  the costs of the domestic violence evaluations and treatment.</p>
  
  <p>(5)   Repealed.</p>
  
  <p>(6)   In the event of a medical emergency, either party shall be allowed
  to obtain necessary medical treatment for the minor child or children
  without being in violation of the order allocating decision-making
  responsibility or in contempt of court.</p>
  
  <p>(7)   In order to implement an order allocating parental
  responsibilities, both parties may submit a parenting plan or plans
  for the court's approval that shall address both parenting time and
  the allocation of decision-making responsibilities. If no parenting
  plan is submitted or if the court does not approve a submitted
  parenting plan, the court, on its own motion, shall formulate a
  parenting plan that shall address parenting time and the allocation of
  decision-making responsibilities. When issues relating to parenting
  time are contested, and in other cases where appropriate, the
  parenting plan must be as specific as possible to clearly address the
  needs of the family as well as the current and future needs of the
  aging child. In general, the parenting plan may include, but is not
  limited to, the following provisions:</p>
  
  <p>(a)   A designation of the type of decision-making awarded;</p>
  
  <p>(b)   A practical schedule of parenting time for the child, including
  holidays and school vacations;</p>
  
  <p>(c)   A procedure for the exchanges of the child for parenting time,
  including the location of the exchanges and the party or parties
  responsible for the child's transportation;</p>
  
  <p>(d)   A procedure for communicating with each other about the child,
  including methods for communicating and frequency of communication;</p>
  
  <p>(e)   A procedure for communication between a parent and the child
  outside of that parent's parenting time, including methods for
  communicating and frequency of communication; and</p>
  
  <p>(f)   Any other orders in the best interests of the child.</p>
  
  <p>(8)   The court may order mediation, pursuant to section 13-22-311,
  C.R.S., to assist the parties in formulating or modifying a parenting
  plan or in implementing a parenting plan specified in subsection (7)
  of this section and may allocate the cost of said mediation between
  the parties. Cite as C.R.S § 14-10-124</p>
</blockquote>

<p>In Germany, this would depend on whether the mother is married.</p>

<ul>
<li>If the mother is married at the time of birth (!), the husband is automatically the legal father (<a href="https://dejure.org/gesetze/BGB/1592.html" rel="nofollow noreferrer">BGB §1592</a>).</li>
<li>If the mother is not married, but the father accepts paternity, and the mother agress, the father is the legal father, too.</li>
</ul>

<p>In these two cases biological paternity is not required. Biological paternity 
is only relevant in that the biological father can contest paternity if he chooses to.</p>

<p>If neither of the above applies, things get complicated. The biological father can sue for paternity, but this is difficult.</p>

<p>If the legal father later discovers he is not the biological father (as in your case), he <em>can</em> contest paternity (<a href="https://dejure.org/gesetze/BGB/1600.html" rel="nofollow noreferrer">BGB, § 1600</a>). After finding out, he has two years to do this (<a href="https://dejure.org/gesetze/BGB/1600b.html" rel="nofollow noreferrer">BGB, § 1600b</a>).</p>

<p>If the legal father chooses not to contest paternity, nothing changes.</p>
