Q: Paternity question- resembling NE case state ex rel. Miah S. V. Ian K.
In my case , instead of State , the plaintiff ( bio dad) has brought a paternity suite in his own capacity using NE statute 43-1411. The children were born during marriage of my wife and myself. We do not have any divorce decree entered. 43-1411 allows state/alleged father/mother to file paternity suites for child born out of wedlock. Our children were NOT born out of wedlock. Can the plaintiff still bypass a divorce petition and ask the court to grant him a cause of action ?
A: When a child is born during the marriage, there is a marital presumption that the child born during the marriage is a child of the marriage. If the parties remain married, they could object to a third party trying to establish paternity and argue that the marital presumption prevents the third party from trying to claim legal paternity. There is case law that supports that the paternity action should be dismissed, but the best course of action and odds of success in a specific case depends on the facts of the case.
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