My Boyfriend Wants Custody but My Husband Says No

Dear Law,

I never imagined I’d be writing this, but I don’t know what to do. My husband and I have been married for seventeen years and blessed with six beautiful daughters. We had long given up hope of ever having a son. My husband was deeply disappointed and started to bury himself in work, and I felt invisible. In my weakness, I reconnected with an old boyfriend. It was one foolish mistake.

My husband was overjoyed when my son was born five years ago. For the first time in a long time, he was himself again. He got the boy he’d always wanted. He named him after his late father. For years, laughter filled our home again until two years ago, when my son fell sick and a routine medical test exposed the truth.

I thought my marriage was over, but my husband forgave me. It took some time, he initially sacked me from the house, after a while he asked me to come back. He said the boy was ours, and that love, not blood, makes a family. Since then, he has been a better husband than ever. I’ve never felt more grateful or more ashamed.

My issue now is with the father of the boy. He says he wants to “be a father” to his only son, he is childless. He served me with an application for custody. . My husband is furious and has vowed never to let the boy go. I’m torn apart. I support my husband completely, but I don’t know what the law says or if we stand any chance of keeping our son.

Please, can my husband and I keep our son.

— Anonymous

The Presumption of Legitimacy in Marriage

Ghanaian law presumes that the husband is the father of a child born during a valid marriage. This principle is the presumption of legitimacy. It exists to protect children from the stigma of illegitimacy and to promote family stability. The law presumes a husband fathers any child his wife bears while they live together in marriage. This is also true under Customary Law.

This presumption is strong but not absolute. A person who disputes it must bring clear proof, usually through a DNA test or other strong evidence showing the husband could not have fathered the child. Until such proof exists, the husband remains the child’s legal father in the eyes of the law.

Because of this, your husband’s name on the birth certificate and his acceptance of the child give him legal standing as a parent. The biological father cannot automatically override that legal presumption. The law protects the marital family first, and only firm evidence or a court order can change that position.

In short, the law begins by recognizing your husband as the father. However, this is not absolute. A n opponent can rebut that presumption.

Learn  more about Paternity Fraud from our article here

Establishing Biological Paternity

While the law starts by recognizing the husband, it also allows the truth of biology to be proven in court. A man who believes he is the biological father may apply to the Family Tribunal for a declaration of paternity. The court then considers scientific evidence, usually a DNA test, to determine if he truly fathered the child. Scientific evidence is treated as expert evidence by the law. While expert evidence may be compelling or persuasive it is not binding on the judge. Therefore, the DNA test will not necessarily bind the judge. Only the law binds the judge.

In disputed cases, the court must order a DNA test. The court must also require that the test be done at an approved lab to ensure fairness and credibility. If the test confirms paternity, the court may acknowledge that finding. However, this does not automatically give the biological father custody or parental rights. This will only establish paternity. He must make a separate application for those rights, and the court will make a decision. The Court’s decision will be guided by what serves the child’s best interests.

Courts treat these cases carefully because they involve both emotional and legal consequences. Establishing biological paternity changes how the law views the child’s identity, inheritance, and family relationships. Yet, it does not erase the bond or responsibilities the husband may already have as the child’s legal father.

Law, Biology & Best Interest Principle

Ghanaian law makes the child’s welfare the court’s primary concern. Section 2 of the Children’s Act declares the best interest of the child as paramount in every matter affecting a child. Courts must place that interest above other claims, including a biological parent’s rights.

When parties dispute who should have custody, biology is not the only consideration. Judges consider stability, emotional bonds, the child’s living conditions, and who has provided care. The Matrimonial Causes Act and related family law give courts broad powers to make custody and access orders that serve the child’s welfare.

Legal fatherhood is also subject to the best-interest test. A man who has raised and cared for a child builds a legal position that courts treat seriously. Even if a DNA result later proves a different biological origin. The courts will not displace the child lightly if doing so harms the child’s welfare.

In simple terms, neither biology nor legality will trump the child’s need for continuity, care, and emotional security. The court’s mandate is to choose the outcome that protects those needs first.

What is the Judgment?

Ghanaian law can recognise both a man who raised a child and the biological father. The one who gets to enforce parental rights is a different matter. It can one or both, or even neither, the court will always serves the child’s best interest. The Children’s Act gives tribunals and courts power to make orders about custody, access and parentage and requires them to put the child’s welfare first.

A biological father who proves paternity, may apply for access (visitation) or custody. Biological paternity will not displace a legal father. The court will consider whether contact with the biological father will benefit the child. If not, then the biological father’s parental rights will be denied.

In some cases the court splits roles. It may grant the legal father primary custody while giving the biological father reasonable access, supervised contact, or a formal parental responsibility order. The aim is continuity and emotional security for the child, not to punish adults.

When deciding arrangements, courts may also consider the child’s own views where appropriate. The Matrimonial Causes Act and practice under the Children’s Act allow flexibility so judges can tailor orders to the child’s situation. Sometimes, access/custody will not be allowed until the child attains age of majority, then they can decide for themselves.

Many times practical steps are allowed to help settle disputes amicably. These include mediation, therapy, or a clear parenting plan agreed by both sides. If it serves the child’s interest, the court can and may craft a shared role.

Conclusion

The Children’s Act requires that the best interest of the child override every other claim. That principle guides the court even when biology and marriage collide.

In your situation, the court is unlikely to uproot a five-year-old boy from the only home he has known. Your husband has cared for him since birth, given him his name, and provided stability and love. These factors carry great weight under both the Children’s Act and the Matrimonial Causes Act, which allow courts to protect a child’s emotional and social welfare above strict biological rights.

The court may grant the biological father access or limited visitation, especially if it believes that knowing his origins will benefit the child. He may also be denied parental rights entirely even if he succeeds on paternity. In either case, the court is highly unlikely to grant full custody unless it finds you and your husband unfit or your home environment unsafe

Ultimately, the law will not punish your past mistake. It will protect your son’s peace, security, and sense of belonging. The court will seek an outcome where the boy continues to thrive in the stable, loving home that has raised him as his family.