Paternity

Paternity is the status of being a father, either biologically or as the legal status of a relationship as a father to a child. Most states today refer to paternity as the legal establishment of the identity of the father of a child. States may use the term "biological father of a child" or "natural" father of the child. In the end, paternity tells us the legal father of a child.

Not every family begins in the traditional way. There are times when we need to identify a child's biological father. Paternity establishment is a major factor in cases involving:

• Child support
• Child custody
• Adoption
• Inheritance

Establishing paternity can help a mother obtain a child support order. It may also help estranged fathers obtain a court order granting them child custody or parenting time.

The Paternity section of FindLaw's Family Law Center can provide you with the methods of establishing paternity and the legal effects of fatherhood. This section discusses the legal concept of parentage and explains the key administrative and court proceedings.

The articles in this section provide state-specific information on paternity laws and procedures. You will find information on establishing paternity, challenging paternity, and types of paternity tests. You will find links to paternity forms, resources, and more.

Paternity: Legal Rights and Other Effects

Some legal effects of paternity are obvious, like liability for a share of child support. Other effects are not so apparent, such as the right of a father asserting paternity to refuse consent to an adoption. A father claiming paternity can also gain child custody and visitation rights.

Paternity is equally important for the child's mother, who may be able to secure financial support for the child. At the same time, the family court may now require her to share child custody and parenting time with the father.

For the child, establishing paternity could provide the child with legal rights, including:

• Access to worker's compensation
• Veteran's benefits
• Survivor benefits of the father

Paternity may give a child the right to an inheritance. Paternity can also grant rights to a child for social security benefits, health insurance, and public assistance through the child's father. Knowing the biological father of a child can provide relevant medical history from the father's side of the family. Contact and emotional support from both parents can also provide other positive outcomes in a child's life.

How Do You Establish Paternity?

Paternity can be established either voluntarily or involuntarily.

In most circumstances, the presumption is that married parents are the biological parents of a child born during the marriage. When a married mother gives birth, the law sets forth a presumption that her husband is the father of the child. The husband does not need to file a paternity action to establish his parentage. In the same way, the parental rights of a married couple are also presumed.

The law does not recognize unmarried parents in the same way. When an unmarried mother gives birth, there is generally no presumption of paternity. The mother becomes the custodial parent and gains physical custody of the child.

A man who claims to be the father may sign a voluntary acknowledgment of paternity affidavit. If he does so, he may legally bind himself and become a presumed father. This is also known as a putative father. A man may also become a putative father when he marries or attempts to marry the mother during the pregnancy or soon afterward.

In some circumstances, a man who welcomes the child into his home and cultivates a close parent-child relationship may also become a putative father.

Paternity can also occur when a parent or the state files a paternity case in court. Depending on state law, a paternity action may be initiated in an administrative proceeding or in family court. A paternity action can require the putative father or an alleged father to appear and submit to DNA Testing.

The father will submit blood or saliva for DNA testing to determine a match with the child. If DNA test results confirm that the putative father is the biological father, the court can issue a paternity order. Upon issuing the paternity order, the court will help correct the child's birth certificate by adding the father's name. If the paternity case also sought to establish parental rights, the court may also proceed in that direction.

Challenging Paternity

In a contested paternity case, any party can request DNA testing to help the court determine paternity. Upon such a request, the court will issue an order for testing. The order will direct the alleged father, the mother, and the child to appear for the test. Genetic testing will occur at a certified lab approved by the court.

States may have set standards for what level of accuracy is acceptable. The court commonly looks for accuracy in the 90-99 percent range to identify a man as the biological father of a child. If the test results are "positive," the court can then issue a paternity order.

Orders for child support, parenting time, and joint custody arrangements may follow. If the test results are "negative," the court may disestablish paternity and vacate any prior orders providing parental rights to the alleged father.

States may provide time limits on actions contesting paternity. They may also set restrictions on actions seeking to rescind a voluntary acknowledgment of paternity. Such limitations and rules derive from the desire to provide stability in a child's life. Courts focus on the best interests of the child in all matters that will affect children and family life.

Parental rights like child custody and parenting time follow determinations of a child's legal parents. Likewise, financial support obligations and child support cases rely on stability in such legal arrangements. Courts may be hesitant to upend a parent-child relationship that has provided consistency and stability to the child.

How Does Genetic Testing Work?

The advent of DNA profiling was a breakthrough in paternity testing. DNA testing can determine the biological father of the child with over 99% accuracy. This provides greater accuracy than blood tests that were used in the past. Genetic testing can even take place before a child's birth.

A DNA test uses the child's genetic material inherited from its biological parents. There are different test methods.

Here is a common testing scenario:

1. The scientist first compares the child's genetic material to that of the biological mother.
2. The child's characteristics not found in the mother determine the father's genetic characteristics.
3. The scientist then compares the father's characteristics to the alleged father's genetic material.
4. If they don't match, the scientist excludes him as the biological father.
5. If there's a match, the scientist will calculate the probability of the man's parentage.

A positive test result creates a rebuttable presumption of paternity. The threshold probability to create this presumption varies by state.

States Set Procedures for Paternity Determination

Each state has its own legal forms and requirements for establishing paternity. For example, the mother often files a paternity or parentage lawsuit as the custodial parent seeking child support from the father. As part of the paternity action, the court needs to determine the father of a child.

State laws may approach paternity determination from different directions. Most states provide for a marital presumption in paternity actions. With the marital presumption, the state presumes if a woman is married at the time of the child’s birth, her husband is the child's father.

A current concern among states is how the presumption of paternity in marriage applies to same-sex married couples. State laws typically use the terms "husband" and "paternity." Statutory language may focus on biological parents. In an age where couples use assisted reproductive technology, what if the biological mother is a surrogate mother?

States today may be considering expanding the marital presumption to a "parental" presumption. That is, if a child is born to any married couple, no matter the method, the married parents are presumed to be the legal parents and to have legal rights related to the child.

What if the Alleged Father Lives in a Different State?

In some situations, the alleged father may live in a different state or cannot be located. State and federal Parent Locator Services may help find a parent who has disappeared. States are required to give full faith and credit to paternity determinations from other states, in line with their laws and regulations.

If an alleged father lives in another state and fails to respond to a formal complaint served upon him, a default judgment may issue against him based on the evidence presented.

Voluntary Paternity Acknowledgement

A putative father of a child can voluntarily sign an Acknowledgment of Paternity affidavit along with the child's mother. Once this form is filed with the state, it will legally establish the father of the child. The birth certificate will be modified (as appropriate) to add the father's name.

A man may choose to sign an Acknowledgment of Paternity affidavit when he is certain, unsure, or doubtful whether he is the biological father of a child. The filing of the acknowledgment will alert the child support office. The office may take further action to establish a child support order against the father.

The paternity acknowledgment alone will not normally establish any other legal rights, such as custody or parenting time. To establish paternity rights, the unmarried father of a child must file a parentage action requesting those rights with the court.

Voluntary Paternity Determinations: Example Scenarios

Some fathers may not learn about the child they fathered. They may be denied a parent-child relationship. This can occur when the parties' relationship has ended. The mother may not resume contact with the father and may not look for the father to be involved in the child's life.

Where a putative father and an expectant mother remain amicable, they can talk these situations out. A man can voluntarily submit to DNA testing with the expectant mother. If the parties do this informally, they may agree to pay for the testing and agree on what they will do next if paternity is confirmed.

Some men learn years later that they fathered a child. Although they missed out on the child's early years, they may be able to take steps to acknowledge or establish paternity and affirm the relationship. Of course, a voluntary acknowledgment will require the mother's cooperation. If that cooperation is lacking, the putative father can file a paternity case in court.

He can indicate he will voluntarily engage in genetic testing and request testing of the mother and the child. The parties will present evidence at a court hearing. If the court finds paternity, then the legal father may seek custody or a parenting plan. He may also be subject to a child support obligation.

A putative father should not delay. There may be time limits under state law for filing a court action.

Involuntary Paternity Determination

In most states, if a mother wants to establish paternity of her child to secure child support or to gain inheritance rights for the child, she must bring a paternity action as a civil lawsuit. The court will then order a DNA test of the child and the purported father.

A paternity action must be filed while the alleged father is alive. This provides the father the opportunity for a defense. If the father is deceased, the court will only order a posthumous paternity action if the alleged father affirmatively acknowledged the child prior to death.

For example, the father may have put his name on the child's birth certificate, identified himself as the father in a paternity registry, or some other legal action.

The alleged father may file a paternity action during the mother's pregnancy if permitted by state law. He may request that the court legally compel the expectant mother to undergo fetal testing based on an allegation that they engaged in sexual intercourse consistent with the timeframe of the child's conception. But, a court may look at all the evidence and circumstances and decide to wait until the child is born before it orders DNA testing.

Paternity, Child Support, and Public Assistance

More commonly, the state may bring an action to establish paternity and serve both the mother and the putative father. The state takes this action when the mother receives public assistance, such as welfare payments or health insurance. When a mother receives these benefits, she assigns the right to her child support to the state.

The state provides child support services that include paternity testing. It seeks to recover some of the funds the state has expended to support the child. If the test results confirm paternity, and the court issues an adjudication of paternity naming the father as the obligor, then the state can proceed to set up a child support order.

When a parent of a child has a child support obligation and does not pay as ordered, the state can take child support enforcement actions. This may include suspending a driver's license until the parent complies with the order. It may also include filing a contempt of court action in court.

How Marriage Can Affect a Paternity Determination

A paternity determination can become complicated when there's more than one man in the picture.

If the mother is married, there's a legal presumption that the mother's husband is the father of her child. If her husband or another man files a paternity case, the court may order a DNA test and determine who is the biological father of the child. If the test results prove the husband is not the father, the three parties, by agreement or the judge, will determine the best arrangement for custody and support.

When it comes to issues that affect a child's well-being, the court can find good cause to do what is in the best interest of the child. There may be several options:

1. The mother and her husband may choose to parent the child and may ask the biological father to sign away his parental rights. The husband may then adopt the child. In this situation, the biological father does not make child support payments even though he was a parent of the child.

2. The biological father may obtain parental rights and the court may order him to pay child support. The court may award him visitation rights but may not award custody so as not to disrupt the family home of the child.

3. The biological father can seek and may be awarded custody and visitation rights. If there is a change in custody, the court may order the noncustodial mother to pay child support going forward.

Paternity Actions in Court

An action to establish paternity is a civil proceeding in family court. The mother, alleged father, or the state may file the court action after the birth of the child. States set the standard of proof necessary to establish paternity either through state laws or caselaw.

In most states, a party must prove the paternity of a child by a "preponderance of the evidence" standard. A preponderance of the evidence means that it must be more likely than not that the man is the father of the child.

Some states, like New York, use the "clear and convincing evidence" standard to establish paternity. This means there must be a high probability the man is the child's father for paternity establishment. Recent developments in genetic testing have lessened the impact of these different standards.

Hiring an Attorney for Help With Paternity Legal Issues

Sometimes, establishing paternity can be emotionally and legally complex. Whether you are a mother seeking to gain support from the other parent of a child or an alleged father responding to a lawsuit, it makes sense to seek legal advice.

An experienced family law attorney can help you understand your rights and responsibilities, regarding a custody order, parenting time, and child support. They can also explain the legal procedures and consequences of establishing paternity.