When a child is born during a marriage, there is a presumption of legitimacy. It is presumed that the husband of the marriage is the father is the child. This is often true even if it can be proven that the husband is not the biological father. This issue - that of who is the legal father can get added to this already complex issue when the marriage itself becomes questioned. Whether the marriage was intact plays an important role in the legal father vs biological father cases.
An intact marriage has been defined as a one without the pendency of divorce proceedings. If a child is conceived during a marriage, but born after a divorce action has been initiated or after a divorce has been finalized, the child was not born during an intact marriage. This does not mean that the biological father automatically wins and is able to be determined to be the legal father.
However, while there may still be a presumption that the child is legitimate, as it was conceived during a marriage, a biological father now has a stronger argument in favor of establishing his paternity of that child. When faced with this issue, courts must look to other factors once the status of the marriage becomes an challenged.
These factors include any separation of the husband and wife, even before filing for divorce; whether anyone is named as the father on the child's birth certificate when the divorce was finalized in relation to when the child was born; and any support that the biological father provided to the mother and the child both during pregnancy and after birth. This is not a complete list, but these are some of the more common things to be considered when a child's legitimacy is in question.
Cases with biological father vs. legal father issues are extremely fact specific, and therefore there is no one size fits all answer about what will happen with the child. There is also no one size fits all answer for what is best for the child, which is the most important decision in almost all family law cases involving children. A knowledgeable and skilled family law attorney will be able to look at the facts of your specific case and guide you through the court process.