Yes but I don't think the courts would see it the same way if this men filed for custody, would they.
today - News - Missouri State News KANSAS CITY — David Salazar and his estranged wife agree the daughter she gave birth to 14 months after the couple separated is not his. But Salazar narrowly avoided being jailed for 28 days in Buchanan County for failing to pay child support. Now Sen. Chris Koster, a Harrisonville Democrat, plans to try again to change how Missouri law deals with child-support cases involving men who deny paternity. The measure he introduced in the 2007 legislative session failed. Backers of the proposal say cases such as Salazar's show the state's paternity laws are outdated now that DNA testing is available. Critics say changing the law could hurt children caught in the middle. Advertisement 
Several other states have passed laws that allow men to introduce DNA evidence even after state-set deadlines for contesting paternity have passed. In Salazar's case, his estranged wife, Shannon McClure, asked the hospital not to list a father on the birth certificate in November 2001. But court records said the hospital listed Salazar as the father anyway. The Missouri Division of Child Support Enforcement named Salazar the father without DNA testing and served him with notice that he had a duty to support the girl. When Salazar did not appear at a hearing to determine his financial responsibility, the child-support division entered a default order requiring Salazar to pay child support. That default order was docketed with the circuit court, but the court did not hold a hearing or give any notice to Salazar. Salazar was charged with failing to pay child support after he didn't contest paternity by a state deadline. The only two witnesses at his trial were Salazar and McClure, both of whom testified that the child was not Salazar's. But a Buchanan County judge found him guilty of not paying $278 a month in child support, ruling that the Division of Child Support Enforcement's order was enough to make Salazar the legal father of the girl. Salazar was sentenced to 28 days in jail, but the Missouri Supreme Court in October overturned the jail term. The court found that Salazar can't be jailed without a hearing before a judge and a chance to prove that he is not the father. Regardless of the judge's ruling on the issue of paternity, Salazar will have to continue to pay child support. "He's not over this deal," his attorney, Merle Turner, said. "It is a can of worms." The Supreme Court's ruling affects only men who are married at the time their wives have children. Under state law that ties back to English Common Law, a married man is presumed to be the father of his wife's child and the Division of Child Support Enforcement had been able to declare such men fathers without a hearing. Larry Swall, a Liberty lawyer who is chairman of the Family Law Committee of the Missouri Bar, said the state treats men harshly from the start. spacer
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