Basics and Overview: Challenging Paternity

Children clearly benefit when they have two supportive and loving parents in their life. Raising a child presents many challenges today. Financial support and emotional bonds in the parent-child relationship can provide a road to a stable life.

When a child is born, identifying the child's mother occurs immediately. Barring the use of a surrogate, there is no question about maternity.

The same cannot be said about paternity. So, state laws developed methods to identify fathers and determine legal paternity. Some of these methods are based on a legal presumption, and some states define "father" in a legal sense. Others require the filing of a paternity action.

Establishing Paternity

In most states today, there are at least five ways that determine legal paternity for a child:

1. The Presumption of Marriage

When a married mother gives birth, the law presumes that the husband is the father of the child. Depending on state law, this provision applies to husbands who attempt to marry the mother prior to birth (but for some reason the marriage is invalid) or in cases where the child is born within 300 days of a divorce.

2. The Finalization of an Adoption

A final adoption decree can provide proof of paternity for the adoptive father.

3. The Acknowledgment of Paternity Affidavit

Sometime after the child's birth, the unmarried parents sign an affidavit acknowledging the father's parentage.

4. The Administrative Action

A mother or alleged father or state child support agency begins an administrative action to determine paternity. This usually involves DNA/genetic testing. It results in identifying the biological father of a child.

5. The Paternity/Parentage Lawsuit

A mother or alleged father or state child support agency files a paternity or parentage action in court. This usually involves DNA/genetic testing. It results in a court order that normally designates the biological father of the child as the legal father.

Steps After Paternity Is Legal

Once paternity becomes legal under one of these scenarios, the child's birth certificate will be corrected (as needed) to reflect the legal father of the child. Establishing paternity is important for many reasons.

For unmarried parents, it will be the first step in setting forth each parent's legal rights and responsibilities in raising the child. This includes parental rights such as child custody, parenting time (visitation rights), and child support. Paternity will also permit the child to inherit from the unmarried father or obtain benefits as his child or dependent.

Challenging Paternity

What if a legal mother or father questions paternity afterward? What if an alleged or putative father comes forward and claims to be the biological father? What legal action can the interested parties take to "challenge" or contest paternity that was previously established?

Whether and how you can challenge paternity may depend on the state laws where you live. Generally, either of the legal parents, a representative of the child, or an interested third party can challenge paternity by filing a motion in court.

Statute of Limitations for Paternity Cases

There may be time constraints for a court case brought to establish paternity or disestablish paternity. Most states place a limit on initiating an action to establish a parent-child relationship is rather broad. For example, in Ohio, such a case should be brought no later than five years after the child has turned 18 years old.

Federal child support law provides that states that receive federal child support assistance must set up laws for establishing paternity. This includes protocols for signing a voluntary acknowledgment of paternity and rescinding such an acknowledgment. One method for challenging paternity is filing a motion to rescind a voluntary acknowledgment of paternity. States often set a short time limit for this type of challenge such as 60 days from the time of signature.

State Laws: Examples of Time Limits

Some states provide time limits to challenge a paternity finding by setting it aside. In California, such actions should be brought within 2 years of the time the father knew or should have known of the prior judgment or the prior action, whichever came first.

In Texas, a party that signed an acknowledgment of paternity can file to rescind the acknowledgment within 60 days or prior to a filing to establish paternity or child support, whichever comes first. A putative father has 4 years from the date the acknowledgment was filed to initiate a challenge of paternity based on fraud, duress or material mistake of fact. Texas law also provides a procedure where a presumed father can file a denial of paternity at the same time another man files an acknowledgment of paternity. In such a case, a court must not have adjudicated the presumed father as the legal father of the child.

States may provide time limits to challenge the marital presumption or a valid acknowledgment of paternity and rebut it with DNA evidence. The theory behind these laws is to provide finality to paternity judgments as this provides stability for the child.

Parties considering a paternity challenge are wise to seek legal advice early.

Legal Grounds To Challenge Paternity

Paternity proceedings typically rely on evidence, such as blood or DNA/genetic testing. These methods tend to be accurate but can still produce incorrect results at times.

The following are common legal grounds to challenge already determined paternity. This is called a "prior finding of paternity."

Litigants may claim the following:

  • Faulty lab results. Commonly this includes previous mistakes in lab results or evidence of routinely incorrect work.
  • Fraud or scams. This typically occurs when the father sends another person to complete the DNA testing on their behalf to get a negative paternity result.
  • Proof that the parties' relationship was not exclusive. There are times when a mother is unsure of the father. There may be more than one possible father.
  • Proof of the supposed father's infertility or sterility.
  • Proof that test results were mishandled.
  • Proof of infidelity in marriage. The husband is always the presumed father after a child's birth unless proven otherwise. Infidelity from the mother of the child may be a reason for genetic testing.

There are intentional and unintentional legal grounds to challenge the paternity of a child. Fraud represents an intentional act to deceive another. Sometimes the parents submit to a “material mistake of fact." This is a legal term that means the parents both had a mistaken belief about a key fact. In this scenario, the mistake involves facts that could not have been known when paternity was originally acknowledged. It is a genuine mistake that led to the wrong person being named on the affidavit as the father of a child.

State laws vary when it comes to a case challenging paternity. States often post their paternity-related statutes and paternity case procedures online. This can help you learn about each state's legal process and how it might apply to your situation.

Common Steps To Challenging Paternity

After researching your state law and the court's local rules, you will likely begin by filing an action in court. This consists of a complaint or petition seeking to set aside or rebut any prior finding of paternity.

In the past, courts relied on blood tests to show whether a person was biologically related to the child at issue. Today, courts order DNA tests. Court orders may include the child, the father, the mother, or any other interested party. Genetic testing for DNA provides little inconvenience to the subjects. The technician will take a buccal or interior cheek swab of each person being tested.

The courts may also seek evidence from other sources to determine the legal father. This may include:

  • Legal documents such as an acknowledgment of paternity affidavit
  • Medical documents that discredit paternity

Each party can provide testimony and other evidence to the court. The court will weigh the evidence based on the legal standards set forth in state law. When children are involved, the court will also consider whether any outcome is in the child's best interest.

The court will issue a judgment that contains its ruling on paternity. If the court terminates a prior paternity finding, that father will not face obligations such as child support going forward. He will also have no legal rights for custody or visitation.

If the court finds paternity and designates a "new" father, that father will have new legal rights and duties established. This can include custody rights and a child support order.

Termination of child support due to a finding of non-paternity does not provide a basis for relief for past child support paid. Courts find requests for retroactive change or reimbursement to be against public policies that promote children's well-being.

Need Legal Help Challenging Paternity?

When efforts to challenge paternity succeed, they can change a child's life. It may end legal rights and legal responsibilities for one party and set them up for another. Such efforts should be well thought out in advance of litigation.

Time constraints and public policy concerns support reviewing the evidence early in the child's life. Though uncommon, testing errors are possible. The parties can also make mistakes.

Contested paternity cases are rare but usually demand experienced and professional legal help. You can reach out to a family law attorney to help you evaluate your paternity case.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You can represent yourself in a paternity case, but establishing paternity can be emotionally and legally complex
  • Lawyers can help you understand your rights and responsibilities

An attorney can explain the legal procedures and consequences of establishing paternity. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

If you are in the midst of a paternity case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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