By John Mascolo, Esq. | Legally reviewed by Joseph Fawbush, Esq. | Last reviewed June 09, 2023
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When a child is born to a married couple, a legal presumption arises that the husband is the child's father. Both parents of the child have legal custody. No further action is needed by the parents to establish paternity or to define their parental rights.
The situation is different for unmarried parents. Suppose unmarried parents get married after the mother becomes pregnant but before or shortly after birth. The court may also presume that the husband is the child's father. For parents that stay unmarried, the mother is the custodial parent. A parent or the state must pursue the establishment of paternity. This becomes important if the parents break up and a parent seeks custody or a child support order.
In the excitement and anticipation of a child's birth, some parents do not determine how they will complete vital records for their local department of health. They do not focus on what will appear on the child's birth certificate. So, paternity establishment may not take place for weeks, months, or years after the child's birth. Sometimes the delay will occur when either parent is unsure or disputes paternity. Read on for a detailed look at the chronology of establishing paternity.
If the parents marry after the child is born, they may sign a legitimation form (or a Declaration of Paternity). This grants the same rights as if the parents were married at the child's birth.
Even if parents never marry, paternity can be established voluntarily when both are reasonably certain of the identity of the father of the child. They may both sign a voluntary acknowledgment of paternity affidavit or something similar. The acknowledgment will be filed with the court and the appropriate state agency. Parents can do the voluntary acknowledgment right in the hospital following the child's birth or any time after that. The father's name is then included on the child's birth certificate. The acknowledgment will permit the local child support office or the court to establish a child support order for the child. They may also establish a medical support order for the child. The acknowledgment does not establish the father as a custodial parent.
Even if a voluntary acknowledgment isn't signed, the parents of the child may later enter into an agreement with the help and advice of their attorneys. Such a written agreement can establish the father's identity and resolve custody and support issues. The father can complete a voluntary acknowledgment of paternity. The attorneys can request that the court adopt the parties' agreement as a court order.
If voluntary procedures are not pursued, either party or the state can bring a parentage action in court. A parentage action is the same as a paternity lawsuit.
A mother may file a paternity action to establish that the man she believes to be the father of a child is the biological father of a child. If the court hearing leads to a paternity finding, she can seek child support from the father.
If the mother receives public assistance (TANF, Medicaid), the state may initiate the action in court for the father to pay child/or medical support. When the state provides cash benefits, the mother assigns her support rights for that period to the state.
In a parentage or paternity action, the alleged father must appear. The court may need him to undergo DNA testing if he contests his paternity. Genetic testing results are usually available in several weeks. They can establish (or negate) paternity with about 99 percent accuracy.
If paternity is established in this manner, the court will enter an order for the father's paternity. The court can issue an order if. If the child support services agency or the mother requests child support. The father then becomes legally obligated to pay child support according to the state's guidelines, which are generally based on both parents' incomes and the needs of the children. The court can deviate from the guidelines when it is in the child's best interests.
Once ordered to pay child support, a father may face consequences if he stops making payments. Local child support enforcement officers can take action to suspend his driver's license or file contempt of court.
But, with legal paternity established, a father can also file for his parental rights. This provides him with the opportunity to share custody of the child to have regular parenting time.
At any time in this process, before a final hearing and entry of the court's order, the parties may still enter into a settlement agreement. The settlement agreement can resolve custody, parenting time, and financial issues relating to the child.
If the mother retains primary custody, the father may have to provide child support for the child. Sometimes agreements seek to have the father pay the mother a lump-sum child support payment in exchange for her agreement to pursue more child support in the future. While this would give the mother the advantage of having a lump sum for a major purchase, such as a home, it also has many potential disadvantages. It is pretty rare for courts to approve such an agreement. Most courts find that prohibiting a party from returning to court to change a support order is against the public interest in children having adequate support.
Once paternity has been established, fatherhood may bring other positive outcomes to the child's life. The child gets legal rights beyond child support. The child can inherit from their father or benefit from his life insurance. The child is eligible for health insurance coverage under the father's policy. The child may receive Social Security benefits or veteran's benefits through the father. They also may be entitled to wrongful death benefits of the father due to someone else's negligence. They can get medical history information related to the father's family. They may reap the emotional benefits of the father-child relationship.
Establishing paternity is an important part of setting up the rights and responsibilities of legal parents. The specific process for establishing paternity may differ among the states. To understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.
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