Paternity Law

Paternity law involves the determination of the legal father of a child. Paternity may be established in different ways. Each state has its own paternity or parentage laws that clarify the public policy of that state.

Today, through genetic testing, it has become easier to identify the biological father of a child. For example, when a child's paternity is in question or denied by the father, the mother may file a paternity suit against the alleged father. She may seek to establish paternity and obtain child support. If the court orders a DNA test, the results will normally indicate or exclude the father in question. Yet, biology is not the only factor or the definitive factor used by courts to determine the legal father of the child.

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States Set Procedures for Paternity Determination

Each state has its own legal forms and requirements for establishing paternity. For example, the mother often files a paternity or parentage lawsuit as the custodial parent seeking child support from the father. As part of the paternity action, the court needs to determine the father of a child.

State laws may approach the paternity determination from different directions. Most states provide for a marital presumption in paternity actions. With the marital presumption, the state presumes that when a married woman gives birth, her husband is the child's father. A current concern among states is how the presumption of paternity in marriage applies to same-sex married couples. State laws typically use the terms "husband" and "paternity." Statutory language may focus on biological parents. In an age where couples use assisted reproductive technology, what if the biological mother is a surrogate mother? States today may be considering expanding the marital presumption to a "parental" presumption. That is, if a child is born to any married couple, no matter the method, the married parents are presumed to be the legal parents and to have legal rights related to the child.

State laws usually include voluntary procedures for parents to establish paternity or parenthood. One such way is the voluntary acknowledgment of paternity by the parents. Unmarried parents can agree on the identity of the child's father after the birth of the child. When they sign an affidavit acknowledging the paternity of a child and file it with the appropriate authorities, they create a legal relationship. The putative father or parent now becomes the legal parent. And the court will direct the appropriate state agency to change the child's birth certificate as needed to reflect the father's name.

Another voluntary method parents may take to determine the paternity of a child involves filing a parentage lawsuit. Although one party files the action and serves the other, it need not proceed in an adversarial manner. The parties may agree to place the matter before the family court and seek a court order for genetic testing. Such testing will determine the biological father of the child. From there the parties may proceed to reach agreements regarding custody rights, parenting time, and child support.

Of course, states will also provide for court action when the parties do not agree. Sometimes, the local child support office will bring an action when the child's mother receives public assistance.

A contested paternity action permits each party to present its evidence and viewpoint. Parties may obtain legal advice and representation throughout the proceedings. The court may order genetic testing to determine the biological father of a child. If an alleged father lives in another state and fails to respond to a formal complaint served upon him, a default judgment may issue against him based on the evidence presented. Additionally, the court may issue a child support order. State and federal Parent Locator Services may help find a parent who has disappeared. States are required to give full faith and credit to paternity determinations from other states, in line with their laws and regulations.

Challenging Paternity

In a contested paternity case, any party can request DNA or genetic testing to help the court determine paternity. Upon such a request, the court will issue an order for testing. The order will direct the alleged father, the mother, and the child to appear for the test. Genetic testing will occur at a certified lab approved by the court. States may have set standards for what level of accuracy is acceptable. The court commonly looks for accuracy in the 90-99 percent range to identify a man as the biological father of a child. If the test results are "positive," the court can then issue a paternity order. Orders for child support, parenting time, and shared custody may follow. If the test results are "negative," the court may disestablish paternity and vacate any prior orders providing parental rights to the alleged father.

States may provide time limits on actions contesting paternity. They may also set restrictions on actions seeking to rescind a voluntary acknowledgment of paternity. Such limitations and rules derive from the desire to provide stability in a child's life. Courts focus on the best interests of the child in all matters that will affect children and family life. Parental rights like child custody and parenting time follow determinations of a child's legal parents. Likewise, financial support obligations and child support cases rely on stability in such legal arrangements. Courts may be hesitant to upend a parent-child relationship that has provided consistency and stability to the child.

How a Family Law Attorney Can Help You

Paternity issues, like most family law issues, can have far-reaching implications. Financial and emotional concerns run high. Parties may debate the responsibilities of fatherhood. When faced with these issues, many seek the counsel of an experienced lawyer.

A child's birth presents its own set of challenges. Parents must adjust to the basic needs of an infant, including feeding and health care. If you're seeking a paternity order, consider speaking with an experienced family law attorney. An attorney can help answer your questions and discuss possible court proceedings.

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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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