Ok, my brother inlaw has a situation about his eight month old child. When he and the mother met, he thought she was eighteen and he was 26, but he recently found out that her I.D. was fake and a the time they were having sex and she got pregnant she was only 15. She’s 17 now and he is about to be 28. What will happen to him if he tries to get a paternity test and custody of the child because he also found out the girl is a prostitute and has been since she was 14…will he be charged for statutory rape if he goes to try and get a paternity test for the child? He’s scared because he doesn’t want to go to jail because she had a fake I.D. and he just found out after the fact how old she was. Will he go to jail and can he still get custody?

There appears to be four legal issues your brother-inlaw will need to address.

1. Violation of California Penal code 261.5 Unlawful sexual intercourse with a minor
2. Proof of paternity through court ordered DNA testing
3. Child Custody
4. Child Support

Your brother-inlaw should not try to handle this without first being advised by a lisenced California attorney. There is no provision in the law (that I have found) for an affirmative defense of 261.5 based on lack of knowledge of age; however, many things can impact these cases and impact how the District Attorney (DA) handles them, including "her" arrest record (if any) for acts of prostitution and/or records showing she used fake ID's. These are a among the subjects your brother-inlaw should discuss with a lawyer. These are also things his attorney can present to the DA on his behalf and deal for a favorable result if there are charges filed under 261.5.

If a paternity test proves that the child is his, he has "equal" parental rights and obligations as the mother does. He has a right to petition the court for a custody arrangement or to file a petition for designation the custodial parent or primary care giver for his child.

Either parent can be required by the court to pay child support, depending on the custody arrangement. Your brother-inlaw may save himself a horrendous amount of legal problems by hiring an attorney to help him sort this out.