Paternity Determination: Voluntary and Formal Proceedings

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

When a child is born to a married couple, there's a legal presumption that the husband is the child's father. The married parents fill out a form with the hospital and place the husband's name on the application for the child's birth certificate with the state vital records office. The presumption of paternity informally establishes paternity for the husband.

There is no such presumption when two unmarried parents have a child together. Although everyone knows a child's mother at the child's birth, the paternity of the father must be established in legal proceedings. These proceedings can be voluntary or involuntary. A potential or putative father can voluntarily establish paternity by completing and filing an affidavit acknowledging paternity or through a court paternity proceeding. If a father does not acknowledge their child, the child's mother or the state may bring a court action to establish paternity. This proceeding may be involuntary for the putative father. However, it allows the court to declare and identify the child's legal father.

Read on to learn more about how states determine paternity and what happens in court proceedings related to paternity.

Why Establish Paternity? The Rights and Responsibilities of Parenthood

If an unmarried father wants to ensure they have custody or visitation rights, they can be legally named the father through a voluntary Acknowledgment of Paternity Affidavit or via a court order of paternity. Until paternity determination occurs, an unmarried father does not have the legal rights of a parent of a child.

Parents have an obligation to provide a safe, nurturing environment. They have an obligation to meet children's needs for:

  • Food
  • Clothing
  • Housing
  • Health care
  • Parental guidance

This requires financial support. Such support may include child support. It may also include derivative benefits from fatherhood, such as social security disability payments, survivorship rights to a pension, or inheritance rights.

Lack of financial support is the most common reason for seeking a paternity order. With a determination of paternity, a noncustodial parent may be ordered to pay child support.

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 those rights, the unmarried father of a child must file a parentage action requesting those rights with the court.

Voluntary Paternity Determination

The establishment of paternity need not conjure up images of court battles. An unmarried 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 father of the child.

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 and/or parenting time. 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. Of course, a court may look at all the evidence and circumstances and decide to wait until the child is born before it orders DNA testing.

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 in support of 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:

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.

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.

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

Learn More About Paternity Determination From a Lawyer

Whether through a marital presumption or legal proceedings, establishing a child's parentage is an important step on the road to fatherhood. If you believe you are a biological parent of a child and have questions about a paternity determination or want help establishing paternity, talk to a local family law attorney.

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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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