The divorce process can be an emotional nightmare. One particularly harrowing situation can occur when it is suspected that a child is the result of an affair. If that is the case, what can the reported father do to avoid paying child support for a child that is not his?

In Virginia, as is the case across the U.S., the husband is presumed to be the father of children born during marriage. Unfortunately, that is not always the case, and genetic testing can prove that the presumptive father is not the biological father. And, before one pushes this off as impossible, it has happened in the past.

Luckily, Virginia law offers some relief for this possibility. Chapter 20, Section 49.10, provides for relief from a legal determination of paternity. The presumptive father can file a petition with the family court for relief from child support. This can be done in the divorce process, which is the easiest time to ask for a DNA test. However, post-divorce family law courts can set aside a court order, final judgment, administrative order, and any child support obligation or legal paternity determination.

The family law court does this through a scientifically reliable genetic test that determines that the presumed father is not, in fact, the biological father. The costs of this genetic test are paid for by the father, and asking for this will trigger the appointment of a guardian ad litem to represent the best interests of the child before the court. This guardian ad litem performs an investigation into the underlying facts of the case and the parties involved to make recommendations to the court.

Once the court makes the finding that the presumed father is not the biological father, the family court will order a new birth record, among other appropriate relief, like stopping child support obligations. It is important to note though that retroactive modification is not allowed, and any obligation to pay will only be canceled back to the date when the relief from a determination of paternity is requested.

Paternity can be a complicated issue in divorce. If there is any question of paternity, it is imperative to bring these issues up during the divorce process. An obligation to pay child support will stand until changed, even if one is not the father, which is why those thinking about divorce should contact a professional immediately.