May husband be forced to support wife’s adulterine child?

by Atty Emmanuel S Tipon

May a person be compelled to support a child not his own without violating that person’s constitutional right to due process of law?

A&B, Fiipinos, were husband and wife. The wife fooled around and begot two children. The wife filed for divorce and obtained child support for the two children by default judgment.

Subsequently, the ex husband became suspicious, following whispers from friends, that the children he was supporting were not his own. He took the children for DNA testing which conclusively established that they were not his children.

Consequently, he sought relief from the support order. The ex wife had the chutzpah to object.

The duty to support a child is one that a father owes to his own child. 41 Am Jur. 2d § 92, citing In re Kemp, 234 B.R. 461 (Bankr. W.D. Mo. 1999), aff’d in part, rev’d in part on other grounds, 242 B.R. 178 (B.A.P.) 9th Cir. 1999), aff’d, 232 F.3d 652 (8th Cir. 2000) (applying Missouri law and holding that natural father is liable for support of his natural child).

“Once a husband’s nonpaternity of children born during the marriage is established, he has no duty to support children not biologically related to him.” 41 Am Jur. 2d § 92, citing In re Lang, 293 B.R. 501 (B.A.P. 10th Cir. 2003) (applying Utah law and holding that once the issue of non-paternity is established, a nonbiological father has no duty to support any children that are not biologically related to him).

CHILDREN BORN DURING MARRIAGE PRESUMED LEGITIMATE

It has been held that “children born during the parties’ marriage are presumed legitimate, but that presumption, if rebutted means that the non-biological father has no financial responsibility toward the child.” Masters v. Worsley, 777 P.2d 499, 501 (Utah Ct. App. 1989) (applying Utah law).

“Generally, a husband is not, merely by virtue of his status as such, liable to support an illegitimate child born to his wife before or after marriage.” 41 Am Jur. 2d § 93, citing Kucera v. Kucera, 117 N.W.2d 810 (N.D. 1962) (applying North Dakota law and holding that “a child born to a marriage is presumed to be the child of the parties to the marriage, but this is only a rebuttable presumption, and is not  conclusive,” and  “since the child is not a child of the marriage, it follows that the trial court could not require the defendant to support such child, and that the portion of the trial court’s order relating to it also is reversed”).

RECOMMENDATION: If your wife fools around, it is best to have her children DNA tested to determine whether you are really the father or not. Otherwise you may be supporting children not your own. That would be double jeopardy. Kaawa awa ka naman. Torotot na, magbabayad ka pa. Long engagements, like the more than 7 year live-in relationship of Prince William and Catherine “Kate” Middleton whose wedding we witnessed in London on April 29 can minimize (but not necessarily guarantee) the incidence of  infidelity.

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(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1^st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)