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What happens if someone with a legal wife has a child with his girlfriend?

Also what will happen to this person if he is on a non-immigrant visa? (For example an international student comes to the US with his legal wife, then will also find a US citizen/Green card holder girlfriend and has a child with her).

EDIT: I want to add some more specific questions:

  1. Is it a crime having a child from a person you are not married with, while you are married with another person?

  2. Can this child get a birth certificate with no problems? Does the law accept this man and woman (boyfriend - girlfriend) as the child's legal parent?

  3. Does this child birth have any effect on the current marriage of man? I mean the court/law still verifies the current marriage?

  4. Could this child cause any kind of problem in the future for the father if/when he wants to change his status from non-immigrant to immigrant?

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    Anybody want to add child support / paternity issues to their answer? Previous questions by OP have asked about California laws.
    – mkennedy
    Aug 21, 2021 at 19:22
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    @mkennedy that is an excellent point. It could be especially significant if the father is from a country with a relatively low cost of living and correspondingly low salaries, making him unable to afford child support at US levels.
    – phoog
    Aug 22, 2021 at 19:25

3 Answers 3

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It depends on the jurisdiction. You haven't used a tag to indicate one, but the question gives the example of the US.

In general, there aren't any legal consequences for having a child out of wedlock.

what will happen for this person if he is on a non-immigrant visa?

There will be no change in the father's status. The child will be a US citizen (unless the father is a diplomat and the mother is not a US citizen who would meet the criteria for passing US citizenship to the child if the child had been born abroad). After the child's 21st birthday (assuming the child is a US citizen), the child will be able to submit an immigrant petition on the father's behalf, and if that petition is successful, the father can apply for an immigrant visa or for adjustment of status.

Is it a crime having a child from a person you are not married with, while you are married with another person?

Perhaps in some jurisdictions, but I am not aware of any. Certainly not in the United States.

Can this child get a birth certificate with no problems? Does the law accept this man and woman (boyfriend - girlfriend) as the child's legal parent?

It depends on the state. There is traditionally a presumption that married people only have children with each other, but that presumption can generally be overcome through various degrees of legal process, ranging from statements by the parents to biological paternity tests.

Does this child birth have any effect on the current marriage of man? I mean the court/law still verifies the current marriage?

It might motivate the man's wife to sue for divorce, and it might make the outcome of any separation or divorce less favorable for the man, but there is no automatic impact on the marriage, at least not in the US.

Could this child cause any kind of problem in the future for the father if/when he wants to change his status from non-immigrant to immigrant?

Not as far as I can see. The most likely impact would be if the child's existence exposes some lie that the father had made in some application for an immigration benefit. If the father doesn't lie to immigration officers, this can't happen.

Furthermore, to be clear, I'm thinking here of fairly specific and somewhat farfetched scenarios such as one in which the father falsely claimed on the visa application form not to have been to some country, and the mother is known to have been in that country at the time of the child's conception.

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  • So just to let me understand: As a parent, you cannot automatically immigrate into the U.S. in order to live with your U.S. citizen child? I thought that's one reason why many otherwise ineligible immigrants from Latin America send their minors first (and those aren't even citizens).
    – Peter - Reinstate Monica
    Aug 19, 2021 at 10:51
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    @Peter-ReinstateMonica It increases your chances, but it's by no means automatic, even if the children do become citizens (which also is not automatic). There's a more fundamental reason for sending children first - if you and your family are in a country where you are all in danger, and you don't have enough money to save everyone, then any good parent will save their children first.
    – Graham
    Aug 19, 2021 at 13:50
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    @Jan, Depends on the state in which the child is born.
    – ouflak ♦
    Aug 19, 2021 at 15:57
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    @R..GitHubSTOPHELPINGICE see this answer to "Exactly which individuals born in the United States are not subject to its jurisdiction?" over at Law. In theory, the spouse of a diplomat must either have diplomatic immunity or be a US citizen or non-citizen national. I think the rule stated in the FAM assumes that the parents are married, but I'm not certain of that. Also, since this rule is only available in an outdated version of FAM, it's possible that the interpretation has officially changed.
    – phoog
    Aug 19, 2021 at 18:41
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    An unlikely, but possible, consequence is that the existence of the child causes US Immigration to believe that the marriage of the father is a sham.
    – DJClayworth
    Dec 2, 2021 at 15:53
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Is it a crime having a child with a person you are not married to, while you are married with another person?

No.

Can this child get a birth certificate with no problems? Does the law accept this man and woman (boyfriend - girlfriend) as the child's legal parent?

Birth certificate is no problem from the background you've given. Establishing paternity could be an issue depending on the state. Some states won't allow the father's name on the certificate in this scenario unless he specifically declares his paternity through a separate legal process.

Does this child birth have any effect on the current marriage of man? I mean the court/law still verifies the current marriage?

No effect whatsoever. However this is assuming the facts as plainly as you've stated them. There could be background scenarios which make things a bit more complicated, not so much actually affecting the marriage itself, but whether the U.S. recognizes the marriage as valid for the purposes of immigration. However that's starting to drift into soap opera style drama, so we'll leave it.

Could this child cause any kind of problem in the future for the father if/when he wants to change his status from non-immigrant to immigrant?

Covered in phoog's answer above. There are all sorts of immigration scenarios we can't predict here (for example the father wanting to visit the U.S. claiming to spend time with his son, and his son, upon being contacted, claiming that that's the first he's heard of it - that kind of thing).

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  • I think in Germany they put the mother’s husband on the birth certificate automatically. For up to 9 months after divorce. It’s extra work to replace this with the true father.
    – gnasher729
    Aug 28, 2021 at 11:40
  • @gnasher729, Sure if they are married, most U.S. states (probably all) automatically put the husband on the birth certificate as the father. But that's far away from the OP's scenario.
    – ouflak ♦
    Aug 28, 2021 at 16:37
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Could this child cause any kind of problem in the future for the father if/when he wants to change his status from non-immigrant to immigrant?

As the other answers have said, usually no, unless this exposes some other lie that was made in the visa application.

However, there is a pretty large exception to this: If the man's wife is a U.S. citizen or permanent resident, then this could have a large impact on future application to change to immigrant status, particularly if the wife decides to divorce the man because of the infidelity. It's much easier for the spouse of a U.S. citizen or permanent resident to immigrate to the U.S. than it is for others. Thus, if the infidelity resulted in the man being divorced by his U.S. citizen or permanent resident wife, that could indeed make it significantly more challenging to change to immigrant status in the future. Of course, this situation remains the same regardless of whether the extramarital affair results in a child or not.

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    Indeed, a divorce has that effect even in the absence of an extramarital affair, though the extramarital affair and the child do indeed seem likely to result in a substantial increase in the probability of a divorce.
    – phoog
    Aug 19, 2021 at 19:35
  • In my assumption the man and his wife hold F-1 and F-2 student and dependent visas. And the girl friend who the man produced a child with her is a US citizen/Permanent resident.
    – user22663
    Aug 20, 2021 at 0:35

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