How to Legally Get a Paternity Test If the Child’s Mother Refuses

There are plenty of reasons a potential father might want to get a paternity test on a child. But they all boil down to the need for confidence either that you are the biological father or you’re not. That certainty can be important. It can also have legal implications for several aspects of your life.

While seeking a paternity test may seem reasonable under the circumstances, the biological mother may not always see it that way. So, what can you do if the child’s mother refuses to consent to a paternity test?

The answer will depend heavily on your specific situation. Restrictions surrounding the pursuit of a paternity test under these circumstances can also vary by state. When determining your best course of action, you’ll want to work with an experienced father’s rights attorney who can explain your options.

In this article, we’ll explore some of the underlying principles at play. This will familiarize you with the legal landscape surrounding your paternity rights.

First, let's discuss what a paternity test is.

Paternity Tests

A paternity test is a type of genetic testing used to determine if someone is the biological father of a child. When done properly, paternity tests are extremely accurate.

They compare the potential father’s DNA samples with the child’s DNA sample. The samples are collected when someone swabs the inside of the child’s cheek and that of the possible father. These cheek swabs are then analyzed in a laboratory or testing facility.

The results generally confirm or exclude a person as the biological father of a child.

Legal Paternity Tests

Confirming parentage through official DNA paternity tests can have legal implications. These test results are admissible in court and often impact matters related to: 

• Child support
• Child custody and visitation rights
• Social Security benefits
• Public assistance
• Inheritance rights

So, there are plenty of scenarios where it’s important you have test results that are legally admissible.

Peace of Mind Tests

Home paternity tests use the same scientific procedures. We often hear these called "peace of mind" tests. They’re DNA-collection kits you can buy online and in pharmacies. They include the swabs and other materials to collect and send the samples to a facility for testing.

However, at-home tests are distinct from official legal paternity tests because they lack the same professional/legal oversight and protocols. Accordingly, these tests can’t be used for legal proceedings. As the name suggests, they’re designed for personal knowledge.

If financial support and legal rights aren’t hanging in the balance, an at-home DNA test may provide the answers you need even if the mother refuses. Whether a home test like this is a viable option depends on several factors, like whether you already have parental rights and the child’s jurisdiction.

So How Can You Get a Legal Paternity Test?

The most common and legally accepted way to get an official paternity test without the mother's consent is through a court order. How you go about obtaining one varies by jurisdiction and several factors.

If You're Not Listed on Birth Certificate

If you’re not listed on the child’s birth certificate, you’ll likely need to establish legal standing before you can request a court-ordered paternity test. To do so, your lawyer will petition the court with evidence of your relationship with the child or reasons you believe you’re the biological father.

If You Are Listed on Birth Certificate

If you’re listed on the birth certificate, you’re typically presumed to be the legal father. This can make it more challenging to contest paternity. But as the presumed father, you already have legal standing.

Since your acknowledgment of paternity is already on the birth certificate, your attorney may need to provide compelling reasons for doubting it.

Some states have time limits on paternity challenges by someone already listed as a child's father. For example, California law gives those listed on the birth certificate two years from the child's birth to challenge paternity. After that period, the presumed father generally loses the right to contest paternity. However, there are exceptions.

Getting a Court Order

Obtaining a court order for an official test is optimal if you plan to use the results for legal purposes, like deciding custody or child support. Courts typically don’t order home tests.

The court's primary concern in determining whether to order an official test is the best interest of the child.

The process of getting a court-ordered paternity test generally involves several steps:

• Petition: Your lawyer will help you file a petition with a court in the child’s jurisdiction. This document explains why you want the test and why you think you may or may not be the father.
• Notice: The mother will be served notice of your request. She'll have a chance to respond and argue against the test.
• Court hearing: There will usually be a hearing, where both sides ca present their case. The judge will listen and decide whether to order the test.
• DNA test: If the judge orders the test, you'll be told where to go for it and when.
• Results: The test results will be sent to the court.

 The court may choose not to order a paternity test if it thinks the results could potentially harm the child emotionally or disrupt their life.

But if the court agrees the test is warranted, it will issue a court order. The mother will have to follow it and allow her child to be tested. If she doesn’t, she may be held in contempt of court.

Affidavit of Paternity

After an alleged father takes a paternity test confirming he’s the biological father, the court may require him to complete an affidavit of paternity. This legally establishes paternity based on the test results. But in some states, the court may go ahead and issue the paternity order without an affidavit.

Prenatal Paternity Tests

If you’re trying to get a paternity test but the child isn’t born yet, you’ll have a tougher time without the pregnant mother’s consent.

Non-invasive prenatal paternity tests (NIPP) typically require a blood sample from the mother. So, they involve the pregnant person’s:

• Right to privacy
• Bodily autonomy
• Right to make pregnancy decisions

As such, courts are usually hesitant to order any prenatal testing. But the laws vary by state, and there are circumstances under which a court might consider it. It will weigh the best interests of the unborn child with your right to know and the mother’s privacy rights.

Some cases involving legal or medical necessity could be affected by the uncertainty of paternity. For example, if the unborn child’s life, health, or well-being depends on identifying the biological father for medical history reasons, you may be able to obtain a court order for a NIPP.

Your lawyer can help you determine whether your reasons are compelling enough to pursue a NIPP. If they are, the process of petitioning the court with reasons for your NIPP request is essentially the same as that for official DNA swab tests. And you may also use court-ordered NIPP test results for legal purposes.

Getting Legal Advice

Fatherhood isn’t something about which you should have to guess. But trying to get a paternity test without the mother's consent can be complex. Given the rights at stake, you’ll want to proceed with informed decisions.

Consider speaking with a father’s rights attorney who specializes in family law or paternity law. You can confidentially share the specifics of your situation with them. They can help you understand your options and avoid legal problems throughout the process.

Your rights will depend on the circumstances and the laws of the state where the child lives. As such, you’ll want to work with someone licensed in that jurisdiction and experienced with its paternity laws.

Findlaw’s directory of dedicated father’s rights attorneys can assist you with this. Just click on the child’s state to view contact information for several lawyers who can help. You can also narrow your search results by city if you prefer.

Either way, don’t go on this journey alone. Let a trusted advocate guide you at this uncertain time.