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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I've recently found out that my 7yo sons dad is not his

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Hi, I've recently found out that my 7yo sons dad is not his biological father. We broke up when he was a baby and apart from a few breaks he's had him every other weekend and always paid maintenance. My question is, once I tell him the truth can he sue me for the money he's paid in maintenance and will he still have rights to see my son? He's on the birth cert and has parental responsibility. Regards. Jade
JA: You have to pay for your first question. If you sign up for a membership, there is a free trial for questions after that. What steps have you taken? Have you filed any papers in family court?
Customer: No this has just happened.
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: I live in Hampshire
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

can you explain how you found this out please?

is your child's biological father around?

Customer: replied 6 days ago.
I had an affair, I knew it was around the time that my son was conceived. I noticed that he really started to look like the guy I had an affair with so we did a dna test and he's the father.

Thank you. You have to decide here what you want to do because I don’t know whether your partner is aware of this and I don’t know whether the natural father is aware of it and whether you want to upset the applecart. A practical consideration not a legal one because legally you should get the birth certificate amended to remove the natural father and stop paying maintenance.

There is a possibility that he would try to get the maintenance back from you which he has paid but it’s unlikely that would happen because this was, from what you have said, a genuine mistake.

You can’t amend any records without consent of the parties or court order.

Because he has been involved in your son’s life for 7 years as a “father” he could apply for a Child arrangement order to continue to see your son if you were to think about removing it. That would apply now because he has parental responsibility because he is named on the birth certificate and he is still likely to get contact even if his name is removed (whether replaced or not) because of the existing 7 year relationship. The court would not order that to be simply taken away from the child if the child has grown up knowing this person as his father.

With regard to child maintenance, the situation is extremely complicated and this case illustrates it. Ignore the following connections but you will see that the declaration of parentage on the birth certificate makes that person the father for the purposes of paying child maintenance.

https://www.stowefamilylaw.co.uk/blog/2019/11/06/child-maintenance-not-father/

Finally, unless this was a court ordered DNA test it isn’t sufficient for any legal proceedings or application, it has to be a court approved test. They are carried out under strict conditions. It avoids cross contamination.

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Thank you.

Best wishes.

FES

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