Can former Husband verify if he is Father of child born during marriage?

Full question:

I have a friend whose son was married to a woman who bore a child while they were married. They are now divorced, the child is 5 years old and the former husband has been taken to court and a judgement entered in West Va. ordering him to pay back child support (despite the fact that he gave the mother money at her request throughout). My friend overheard the new husband tell someone that he was having an affair with the woman throughout her prior marriage and the child is his, not the former husband's. His request for a paternity test during the child support proceeding was rejected on the grounds it could be upsetting to the child. West Virginia law does not seem to provide a right for a man alleged to be the father to bring suit to establish paternity. Is there anything the former husband can do to verify that he is or is not the father?

• Category: Paternity
• Date: 04/07/2025
• State: District of Columbia

Answer:

West Virginia statutes allow a man who believes he is the father of a child born out of wedlock to file a paternity action when there has been no prior judicial determination of paternity. However, according to West Virginia statutes, "The sufficiency of the statement of the material allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a particular case shall rest in the sound discretion of the court, to be exercised by the court according to the circumstances and exigencies of the case, having due regard for precedent and the provisions of the statutory law of this state." This means that the court has the power to decide whether or not to grant the request for a paternity testing if it thinks it's not warranted, based on the facts and circumstances involved in each case. It may be possible to appeal the court's decision. Please see the statutes below for applicability.

The following are WV statutes:

§ 58-5-1. When appeal lies.

A party to a civil action may appeal to the supreme court of appeals
from a final judgment of any circuit court or from an order of any
circuit court constituting a final judgment as to one or more but fewer
than all claims or parties upon an express determination by the circuit
court that there is no just reason for delay and upon an express
direction for the entry of judgment as to such claims or parties. The
defendant in a criminal action may appeal to the supreme court of appeals
from a final judgment of any circuit court in which there has been a
conviction or which affirms a conviction obtained in an inferior court.

§ 58-5-4. Time for appeal.

No petition shall be presented for an appeal from any judgment rendered
more than four months before such petition is filed with the clerk of the
court where the judgment being appealed was entered: Provided, That the
judge of the circuit court may, prior to the expiration of such period of
four months, by order entered of record extend and reextend such period
for such additional period or periods, not to exceed a total extension of
two months, for good cause shown, if the request for preparation of the
transcript was made by the party seeking such appellate review within
thirty days of the entry of such judgment, decree or order.

Please see the information at the following links:

http://definitions.uslegal.com/p/paternity/
http://lawdigest.uslegal.com/family-laws/paternity/
http://lawdigest.uslegal.com/paternity/general/6717/
http://definitions.uslegal.com/a/appeals/
http://definitions.uslegal.com/a/appellate-review/

Please see the forms at the following links:

http://www.uslegalforms.com/wv/WV-FCF-003.htm
http://www.uslegalforms.com/wv/WV-FCA-FORM-1.htm
http://www.uslegalforms.com/wv/WV-FCA-FORM-2.htm
http://www.uslegalforms.com/wv/WV-SCA-M1250-1.htm
http://www.uslegalforms.com/wv/WV-SCA-M111-1.htm

Thank You,

Dana

Disclaimer: The attorneys providing answers to your questions only provide legal information. Legal advice is not provided. No attorney-client relationship is established and the attorneys responding to your question will not represent you in any legal matter. Communications do not establish an attorney-client privilege.

You should consult an attorney of your choice for legal representation and legal advice.

When a parent has acknowledged a child and wants to rescind the acknowledgment, he must file with the clerk of the circuit court of the county in which the child resides a verified complaint stating the name of the child, the name of the other parent, the date of the birth of the child, the date of the signing of the affidavit and a statement that he or she wishes to rescind the acknowledgment of the paternity. If the complaint is filed more than sixty days from the date of execution or the date of an administrative or judicial proceeding relating to the child in which the signatory is a party, the complaint must include specific allegations concerning the elements of fraud, duress or material mistake of fact.

The following is a WV statute:

§ 16-5-10. Birth registration acknowledgment and rescission of
paternity.

(a) A certificate of birth for each live birth which occurs in this
state shall be filed with the Section of Vital Statistics, or as
otherwise directed by the State Registrar, within seven days after the
birth and shall be registered if it has been completed and filed in
accordance with this section.

(b) When a birth occurs in transit to or in an institution, the person
in charge of the institution or his or her authorized designee shall
obtain all data required by the certificate, prepare the certificate,
certify either by signature or by an approved electronic process that the
child was born alive at the place and time and on the date stated, and
file the certificate as directed in subsection (a) of this section. The
physician or other person in attendance, or any person providing prenatal
care shall provide the medical information required by the certificate
within seventy-two hours after the birth.

(c) When a birth occurs other than in transit to or in an institution,
the certificate shall be prepared and filed by one of the following
persons in the indicated order of priority in accordance with legislative
rule:

(1) The physician in attendance at or immediately after the birth;

(2) Any other person in attendance at or immediately after the birth;

(3) The father or the mother, or, in the absence of the father and the
inability of the mother, the person in charge of the premises where the
birth occurred; or

(4) Any other person qualified by the department by rule to establish
the facts of birth.

(d) When a birth occurs on a moving conveyance within the United States
and the child is first removed from the conveyance in this state, the
birth shall be registered in this state, and the place where it is first
removed shall be considered the place of birth. When a birth occurs on a
moving conveyance while in international waters or air space or in a
foreign country or its air space and the child is first removed from the
conveyance in this state, the birth shall be registered in this state,
but the certificate shall show the actual place of birth insofar as can
be determined.

(e) For the purposes of birth registration, the woman who gives birth
to the child is presumed to be the mother, unless otherwise specifically
provided by state law or determined by a court of competent jurisdiction
prior to the filing of the certificate of birth.

(f) If the mother was married at the time of either conception or
birth, or between conception and birth, the name of the most recent
husband shall be entered on the certificate as the father of the child,
unless:

(1) Paternity has been determined otherwise by a court of competent
jurisdiction pursuant to the provisions of article twenty-four,
chapter forty-eight of this code or other applicable
law, in which case the name of the father as determined by the court
shall be entered on the certificate; or

(2) Genetic testing shows that the alleged father is the biological
father of the child pursuant to the following guidelines:

(A) The tests show that the inherited characteristics including, but
not limited to, blood types, have been determined by appropriate testing
procedures at a hospital, independent medical institution or independent
medical laboratory duly licensed under the laws of this state, or any
other state, and an expert qualified as an examiner of genetic markers
has analyzed, interpreted and reported on the results; and

(B) The blood or tissue or other genetic test results show a
statistical probability of paternity of more than ninety-eight percent;
or

(3) The mother, her husband, and an alleged father acknowledge that the
husband is not the biological father and that the alleged father is the
true biological father: Provided, That the conditions set forth in
paragraphs (A) through (D) are met:

(A) The mother executes an affidavit of nonpaternity attesting that her
husband is not the biological father of the child and that another man is
the biological father; and

(B) The man named as the alleged biological father executes an
affidavit of paternity attesting that he is the biological father; and

(C) The husband executes an affidavit of nonpaternity attesting that he
is not the biological father; and

(D) Affidavits executed pursuant to the provisions of this
subdivision may be joint or individual or a combination thereof, and each signature
shall be individually notarized. If one of the parties is an
unemancipated minor, his or her parent or legal guardian must also sign
the respective affidavit.

(4) If the affidavits are executed as specified in subdivision (3) of
this section, or genetic tests as specified in subdivision (2) of this
section verify that the alleged father is the biological father, the
alleged father shall be shown as the father on the certificate of live
birth. Paternity established pursuant to subdivision (2) or (3) of this
section establishes the father for all legal purposes including, but not
limited to, the establishment and enforcement of child support orders,
and may be rescinded only by court order upon a showing of fraud, duress
or material mistake of fact.

(5) Paternity may be established pursuant to subdivision (2) or (3) of
this section only when the husband's name does not appear as the father
of a child on a registered and filed certificate of live birth and the
affidavits or genetic tests are completed and submitted to the section of
vital statistics within one year of the date of birth of the child.

(g) If the mother was not married at the time of either conception or
birth, or between conception and birth, the name of the father shall not
be entered on the certificate of birth without an affidavit of paternity
signed by the mother and the person to be named as the father. The
affidavit may be joint or individual and each signature shall be
individually notarized.

(h) A notarized affidavit of paternity, signed by the mother and the
man to be named as the father, acknowledging that the man is the father
of the child, legally establishes the man as the father of the child for
all purposes, and child support may be established pursuant to the
provisions of chapter forty-eight of this code.

(1) The notarized affidavit of paternity shall include filing
instructions, the parties' social security number and addresses and a
statement that parties were given notice of the alternatives to, the
legal consequences of, and the rights and obligations of acknowledging
paternity, including, but not limited to, the duty to support a child. If
either of the parents is a minor, the statement shall include an
explanation of any rights that may be afforded due to the minority
status.

(2) The failure or refusal to include all information required by
subdivision (1) of this subsection shall not affect the validity of the
affidavit of paternity, in the absence of a finding by a court of
competent jurisdiction that it was obtained by fraud, duress or material
mistake of fact, as provided in subdivision (4) of this subsection.

(3) The original notarized affidavit of paternity shall be filed with
the State Registrar. If a certificate of birth for the child has been
previously issued which is incorrect or incomplete, a new certificate of
birth will be created and placed on file. The new certificate of birth
will not be marked "Amended".

(4) Upon receipt of any notarized affidavit of paternity executed
pursuant to this section, the State Registrar shall forward a copy to the
Bureau for Child Support Enforcement.

(5) An acknowledgment executed under the provisions of this
subsection may be rescinded as follows:

(A) The parent wishing to rescind the acknowledgment shall file with
the clerk of the circuit court of the county in which the child resides a
verified complaint stating the name of the child, the name of the other
parent, the date of the birth of the child, the date of the signing of the
affidavit of paternity, and a statement that he or she wishes to rescind
the acknowledgment of the paternity. If the complaint is filed more than
sixty days from the date of execution of the affidavit of paternity or
the date of an administrative or judicial proceeding relating to the
child in which the signatory of the affidavit of paternity is a party,
the complaint shall include specific allegations concerning the elements
of fraud, duress or material mistake of fact.

(B) The complaint shall be served upon the other parent as provided in
Rule 4 of the West Virginia Rules of Civil Procedure.

(C) The family court judge shall hold a hearing within sixty days of
the service of process upon the other parent.

(D) If the complaint was filed within sixty days of the date the
affidavit of paternity was executed, the court shall order the
acknowledgment to be rescinded without any requirement of a showing of
fraud, duress, or material mistake of fact.

(E) If the complaint was filed more than sixty days from the date of
execution of the affidavit of paternity or the date of an administrative
or judicial proceeding relating to the child in which the signatory of
the affidavit of paternity is a party, the court may set aside the
acknowledgment only upon a finding, by clear and convincing evidence,
that the affidavit of paternity was executed under circumstances of
fraud, duress or material mistake of fact.

(F) The circuit clerk shall forward a copy of any order entered
pursuant to this proceeding to the State Registrar by certified mail. The
order shall state all changes to be made, if any, to the certificate of
birth. The certificate of birth may not be marked "Amended."

(i) In any case in which paternity of a child is determined by a court
of competent jurisdiction pursuant to the provisions of
article twenty-four, chapter forty-eight of this code or
other applicable law, the name of the father and surname of the child
shall be entered on the certificate of birth in accordance with the
finding and order of the court.

(j) If the father is not named on the certificate of birth, no other
information about the father may be entered on the certificate.

(k) In order to permit the filing of the certificate of birth within
the seven days prescribed in subsection (a) of this section, one of the
parents of the child must verify the accuracy of the personal data to be
entered on the certificate. Certificates of birth filed after seven
days, but within one year from the date of birth, will be registered on
the standard form of the certificate of birth and will not be marked
"Delayed." The State Registrar may require additional evidence in support
of the facts of birth for certificates filed after seven days from the
date of birth.

(l) In addition to the personal data furnished for the certificate of
birth issued for a live birth in accordance with the provisions of this
section, a person whose name is to appear on the certificate of birth as
a parent shall contemporaneously furnish to the person preparing and
filing the certificate of birth the social security number or numbers
issued to the parent. A record of the social security number or numbers
shall be filed with the local registrar of the district in which the
birth occurs within seven days after the birth, and the local registrar
shall transmit the number or numbers to the State Registrar in the same
manner as other personal data is transmitted to the State Registrar.

(m) The local registrar shall transmit by mail or an approved
electronic process each month to the county clerk of each county the
copies of the certificates of all births occurring in the county or the
data extracted therefrom, from which copies the clerk shall compile
records of the births and shall create an index to the birth records that
shall be a matter of public record. The State Registrar shall prescribe
the form of the index of births.