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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33283
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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The DNA tests available online have confirmed that I am not

Customer Question

The DNA tests available online have confirmed that I am not the biological father of my 2 year old daughter. How do I get a legal paternity test enforced if my wife does not give consent to the legal paternity test? The results of the legal DNA test need to be admissible in a court of law deciding on an eventual divorce petition. We are currently living together and are not divorced.

Can the results be used file for divorce on grounds of adultery? I also want to retain my parental / legal guardian status of my daughter after the divorce.

To prevent any emotional distress to my daughter later on when she grows up to understand the implications, and in her best interests,  can the mother be forced to name the biological father?

Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** I shall do my best to help youI assume that you are named on the Birth Certificate?
Customer: replied 1 year ago.

Yes. And despite knowing this now, I love my daughter with all my heart. She melts me when she says daddy I love you.

Expert:  Clare replied 1 year ago.
How long have you known that your ex committed adultery?have you considered a divorce using the Unreasonable Behaviour ground instead?
Customer: replied 1 year ago.

The DNA results came in 2 weeks ago. And this amounts to adultery. So how can I get a court to order a paternity test if the mother refuses to give consent the legal DNA test?

Expert:  Clare replied 1 year ago.
I appreciate that it amounts to adultery - but if you take this route and use the DNA then you may well lose your relationship with the child.You can use a reputable firm such as Cell Mark to conduct a DNA test on you and the child without involving your wife - and the report would stand in court if necessaryAs you so rightly say this would then provide the evidence that you need of adultery - but only if you start the proceedings within the next six months.However if you do this then your wife can use this report to have your name removed from the Birth Certificate and you would automatically lose Parental Responsibility for the child - but no your wife cannot be forced to name the fatherIn addition whilst you can argue that the relationship already established with the child is such that there shoudl be ongoing contact realistically you will receive less contact than you would if you were still legally named as her fatherThe choices are yours - a starting point is to try and discuss matters with her using Family mediation - since clearly you consider the relationship to be at an endPlease ask if you need further details
Customer: replied 1 year ago.

Thanks Clare. Is there a specific law that I can refer where it clearly states that the mothers consent, knowledge or involvement is not required for the DNA test as long as I am the named father on the birth certificate with parental responsibility.

Expert:  Clare replied 1 year ago.
You have Parental Responsibility for the child and can give consent.https://www.dna-worldwide.com/resource/529/human-tissue-act-section-45-consentYou will be told, correctly, that the most effective test involves testing the mother as well - but it is not essential
Customer: replied 1 year ago.

Hello Clare, I have contacted Cell Mark to conduct the tests and they have said they will need the consent of the mother before they can progress with the test. Or else, a letter from a solicitor which states that I have the parental right to authorise this test.

When you explained the process yesterday, I understood that as long as I am the named father on the birth certificate, the mothers knowledge or consent is not required.

Expert:  Clare replied 1 year ago.
You do indeed have the Parental Right to authorise the test - and Cellmark should know that better than mostSend them a copy of the child's birth certificate; a copy of your marriage Certificate and of your passport and refer them to the following linkhttps://www.gov.uk/parental-rights-responsibilities/who-has-parental-responsibility
Customer: replied 1 year ago.

Thank you Clare.

I have no interest in naming and shaming that man or my wife. This world has nothing to do with what has happened here. This is something that me and my family have to deal with. And likewise that man's family has to deal with it the way they think is appropriate.

For me, justice would mean the following:

That my wife and that man admit truthfully to what they have been doing. And this admission should be to his own family and me. And likewise for my wife to admit to me and his family.

I then want that man and my wife to consent to a DNA test to establish the biological origin of my daughter. I want to use that result to divorce my wife on grounds of adultery. After divorce I want us to continue living in the same house with our children. I want to give us an year and see if we are able to love and respect each other once again. And if yes, then we again get married to each other.

Would all of this be wrong on my part to expect?

Expert:  Clare replied 1 year ago.
In an ideal world no - but in fact you have no way of forcing this to happenYou cannot force anyone else to have a DNA test.You can only force a DNA test that proves that YOU are not the fatherYou cannot force anyone to tell anyone else anything at all.If you wish to have a divorce based on your wife's adultery - based on the DNA - then you cannot continue to live together for more than six months after discovering the adultery
Customer: replied 1 year ago.

Hi Clare, I got Cellmark to collect DNA samples for my daughter and me. As you rightly said the birth certificate was good enough for my consent to hold.

Can I use the "declaration of parentage" application to name the other man and get a court to order a DNA test for that other man? Isn't establishing the biological origin of a child recognised by judges and the family justice system to be of utmost importance? Thanks. Sid

Expert:  Clare replied 1 year ago.
I am glad they saw sense.No I am afraid that your only option is to get your name removed - you do not have any right to get an Order for a DNA test of the putative father
Customer: replied 1 year ago.

I spoke to the putative fathers wife yesterday and showed her the email exchanges. She said she will try to get him to come forward for the DNA test but she hasn't responded yet.

She then asked me what kind of samples will do if she could get it. And I said that Cellmark would need the putative father to appear in person.

I dont want my name removed from the birth certificate. Neither does my wife want that. But she refuses to name the putative father. She just won't talk.

Expert:  Clare replied 1 year ago.
If you force this man to have a DNA test and it is positive then he can use that test to have you removed form the Birth Certificate - something you may wish to bear in mind

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