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Paternity Determination: Voluntary and Formal Proceedings

When a child is born to a married couple, there's a legal presumption that the husband is the child's father. But there is no such presumption when two unmarried people have a child together.

In this situation, paternity must be established either voluntarily by the father or through a formal paternity proceeding. If a father chooses not to acknowledge their child, or is prevented from acknowledging paternity, the court can intervene to establish paternity. This allows the court to declare that the child's father is, in fact, the legal father.

Read on to learn more about paternity determinations through voluntary acknowledgment and through formal proceedings.

Why Establish Paternity? The Rights and Obligations of Paternity

Parenthood (paternity and maternity) comes with rights and obligations. Parents have a right to have access to their children and to make decisions on behalf of their children. They have a right to raise them as they see fit (within reason) within a family and community.

If a father wants to ensure they have custody or visitation rights, they need to be legally named the father through an Acknowledgment of Paternity document or paternity order. Lacking that acknowledgment of paternity, a mother can deny visitation.

Parents have an obligation to provide a safe, nurturing environment. They have an obligation to meet children's needs for food, clothing, housing, medical care, and parental guidance. This requires financial support. Lack of financial support is the most common reason for seeking a paternity order.

In some states, without an official Acknowledgment of Paternity or paternity order, a child's father is not legally obligated to pay child support.

Voluntary Paternity Acknowledgement

A father can voluntarily sign an Acknowledgment of Paternity form to legally establish himself as a child's father. This will guarantee him all the rights and obligations associated with such a role. A man may even choose to sign an Acknowledgment of Paternity form knowing he is not the biological father. He then has the rights and obligations of a father.

Voluntary Paternity Determination

The establishment of paternity need not conjure up images of court battles. A father may be very willing to establish paternity and provide support for his child. He may simply want to ensure that he is indeed the biological parent.

Some fathers are unjustly denied knowledge of and access to the child they fathered. This can occur when the mother doesn't want contact with the father and doesn't want the father involved in the child's life. This denies the father his right as a parent.

To avoid this, a man may voluntarily submit to DNA testing and may even (in limited cases) be able to legally compel a woman with whom he had sexual contact to undergo fetal testing. Only a man alleging that he's the father of an expected child has legal standing to initiate a paternity action.

Finally, some men learn years later that they fathered a child. Although they missed out on the child's early years, they can still claim paternity later to affirm their relationship.

Involuntary Paternity Determination: Formal Proceedings

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 in order to provide 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 or identified himself as the father in some other legal action).

How Marriage Affects a Paternity Determination

A paternity determination can become complicated when there's another 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 petition a DNA test will be ordered. If it proves the husband is not the father, the three parties and the judge will determine the best arrangement for custody and support. There are several options:

  • 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.
  • The biological father may retain his parental rights and will be ordered to pay child support. The court may choose to award him visitation rights but not custodial rights so as not to disrupt the family home of the child.
  • The biological father can seek custody.

Learn More About Paternity Determination from a Lawyer

Whether it's through voluntary paternity or formal paternity proceedings, legally establishing a child's parentage is an important act. If you have questions about a paternity determination or want help establishing paternity, talk to a local family law attorney.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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