Can my ex husband file for my daughter?

[Annie-Davidson 0]

I was married when my daughter was born,my husband and I know that my daughter may not be his. But he wanted to sign the birth certificate anyway so he is listed as her father and she carries his last name. I will be immigrating soon I am just waiting on my interview but in case I do not immigrate before my daughter comes of age would it be possible that my ex husband file for her? I don’t want to do anything that can risk the possibility of causing problems. He is a permanent resident and I am being filed for by our legitimate us citizen son. I don’t know maybe we can get a paternity test but even so can’t he just file for her if by law he is listed as the father...he has also been active in her life as well please help me do the right thing 

[HRQX 4,145]

10 minutes ago, Annie-Davidson said:

but even so can’t he just file for her

He can file but before approving the visa DOS will most likely ask for DNA test through their approved process.

Edited March 11, 2021 by HRQX

[Boiler 45,525]

I would imagine a DNA test might cause an issue, maybe best to find out if he is her father first,

[aaron2020 11,651]

What happens if the US requests a DNA test and she is not his biological daughter?

[Coco8 1,042]

 

50 minutes ago, Annie-Davidson said:

I am just waiting on my interview but in case I do not immigrate before my daughter comes of age would it be possible that my ex husband file for her? I don’t want to do anything that can risk the possibility of causing problems. He is a permanent resident and I am being filed for by our legitimate us citizen son. 

 

You are coming to the US and your underage daughter is staying behind? 

 

Since your husband is a permanent resident, I don't think a DNA test would be required. I have only seen DNA tests for babies of US citizens. 

 

I may be wrong, but the way you wrote your story is a bit convoluted.

[HRQX 4,145]

4 minutes ago, Coco8 said:

Since your husband is a permanent resident

DNA test can also be asked for F2A case: https://travel.state.gov/content/travel/en/us-visas/immigrate/family-immigration/dna-relationship-testing-procedures.html "When genetic testing appears warranted, a Consular Officer may suggest visa applicants undergo DNA testing to establish the validity of the relationship(s)."

 

 

Edited March 11, 2021 by HRQX

[SusieQQQ 11,586]

There is usually a presumption in US law (with some variations at state level) that a child born to a couple in wedlock is the child of both those people, obviously backed up further if listed on the birth certificate. If the long form birth certificate (with both parents names) was issued less than a year after birth, I don’t see why they would ask for a dna test rather than presuming paternity. However it does remain a risk that they ask for one if anything raises suspicion about paternity. Can you think of anything that might?

[Coco8 1,042]

1 minute ago, SusieQQQ said:

There is usually a presumption in US law (with some variations at state level) that a child born to a couple in wedlock is the child of both those people, obviously backed up further if listed on the birth certificate. 

 

Yes, this is why I thought it didn't make much sense they'd request a DNA test.

[xyz12345 260]

You can file for her when you become an LPR.

[SusieQQQ 11,586]

2 hours ago, SusieQQQ said:

There is usually a presumption in US law (with some variations at state level) that a child born to a couple in wedlock is the child of both those people, obviously backed up further if listed on the birth certificate. If the long form birth certificate (with both parents names) was issued less than a year after birth, I don’t see why they would ask for a dna test rather than presuming paternity. However it does remain a risk that they ask for one if anything raises suspicion about paternity. Can you think of anything that might?

From the manual that the consulates use: (this is a different section than visas but one assumes paternity must be treated equally across cases)

https://fam.state.gov/fam/08fam/08fam030401.html

When the mother is living with her husband at the time of the child’s conception, and the husband is not impotent or sterile, there is a conclusive presumption under the laws of some states that the husband is the father of the child.  However, DNA tests along with other credible evidence can possibly result in a finding of non-paternity.

...

Circumstances that might give rise to such a doubt include:

(1)  Conception or birth of a child when either of the alleged biological parents was married to another;

(2)  Naming on the birth certificate, as father and/or mother, person(s) other than the alleged biological parents; and

(3)  Evidence or indications that the child was conceived at a time when the alleged father had no physical access to the mother.

 

3 hours ago, Annie-Davidson said:

can’t he just file for her if by law he is listed as the father...he has also been active in her life as well please help me do the right thing 

If he is legally, presumptively and acts as her father  (and might actually biologically be her father too anyway) I personally see no reason why you/he can’t do this.. The only caveat would be if something in the case might make them wonder about the issue. None of the three circumstances above giving rise to doubt seem to apply in your case?

 

 

Edited March 11, 2021 by SusieQQQ

[aratamorne 165]

13 hours ago, Annie-Davidson said:

I was married when my daughter was born,my husband and I know that my daughter may not be his.

Are you stating you were married to your ex-husband or someone else?  Was she conceived before you were married to your ex-husband?

[Annie-Davidson 0]

12 hours ago, Coco8 said:

 

 

You are coming to the US and your underage daughter is staying behind? 

 

Since your husband is a permanent resident, I don't think a DNA test would be required. I have only seen DNA tests for babies of US citizens. 

 

I may be wrong, but the way you wrote your story is a bit convoluted.

He is no longer my husband,we had a divorce..I’m sorry it’s is so complicated 

9 minutes ago, aratamorne said:

Are you stating you were married to your ex-husband or someone else?  Was she conceived before you were married to your ex-husband?

I was married to my ex husband she was concieved while we were married.

[African Zealot 1,455]

Once you were married when she was conceived and born, she’s his daughter for immigration purposes. That he didn’t sign the birth certificate is irrelevant. There’s significant case law about this.

[Annie-Davidson 0]

14 hours ago, aaron2020 said:

What happens if the US requests a DNA test and she is not his biological daughter?

That’s what I am concerned about I have no issue waiting until I reach but then the concern of her aging out comes into play. I uploaded my civil documents today.

[Annie-Davidson 0]

13 hours ago, SusieQQQ said:

There is usually a presumption in US law (with some variations at state level) that a child born to a couple in wedlock is the child of both those people, obviously backed up further if listed on the birth certificate. If the long form birth certificate (with both parents names) was issued less than a year after birth, I don’t see why they would ask for a dna test rather than presuming paternity. However it does remain a risk that they ask for one if anything raises suspicion about paternity. Can you think of anything that might?

The only thing I think of that may raise suspicions is when he was filed for before he became an lpr he was asked how many kids he had but his sister did not include her,he did not fill out his own ds260 because he cannot read.