Paternity Suit FAQs
Paternity Suits Establish Paternal Responsibility and Rights
When the presumed father of a child denies he is the father, the mother may choose to file a paternity lawsuit. The filing typically compels the presumed father to submit to a DNA test in order to make that determination. It also lays the groundwork for child support and, depending on the circumstances, visitation rights.
A presumptive father also may file a paternity suit if he'd like to establish paternity and, therefore, his parental rights. In some cases, men might want to challenge their supposed children's mother because they want access to their kids. Proving their paternity serves as an initial step toward demanding their legal rights as a father.
Below are answers to some of the most frequently asked questions about paternity suits.
Q: How does the system legally determine the father of a child?
A: Assuming there's no agreement between the parents, either the mother, alleged father, or even in some cases the child or a state agency can bring a paternity suit to identify a child's genetic father. Most paternity actions are filed to establish financial or moral responsibility, gain visitation rights, or settle other controversial issues between the parents.
If the circumstances warrant, a judge will order a blood test from which DNA testing can conclusively determine whether the alleged father is the child's biological father. After science determines a genetic link, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.
Q: Can courts recognize the biological father as the only legal father?
A: The short answer is no. The system could designate a man other than the biological father as the father of the child. Determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from straightforward to downright complex. Making this determination in a lawsuit often involves heated arguments on both sides.
The legal standard for paternity varies from state to state. While we'll cover the basics below, you should investigate your state's laws in order to make an informed determination about your family situation.
There are several legal classifications of fathers. Once established, paternity is difficult to change, and unless there is a private agreement between the father and mother to the contrary, fathers must legally pay child support.
An acknowledged father is the biological father of a child born to unmarried parents. These parents admit that he's the father. In some jurisdictions, an acknowledged father and the birth mother can sign a declaration of paternity to establish paternity. The man then becomes a declarant father. Acknowledged and declarant fathers are obligated to pay child support.
Generally, "presumed father" is the most contested categorization of fathers. There are four circumstances in which a man is presumed to be the father of the child:
- He was married to the mother when the child was either born or conceived;
- He attempted to marry the mother in apparent compliance with the law when the child was either born or conceived, but technical reasons invalidate the marriage;
- He married the mother after the birth of the child and agreed to have his name put on the birth certificate or agreed to support the child; or
- He welcomed the child into his home after birth and openly holds the child out as his own.
A father who's not the biological or adoptive father, but who has a close relationship with the child, or where the relationship is encouraged by the biological parents, is an equitable father. Non-biological fathers during divorce proceedings generally make this legal claim.
The doctrine of the equitable parent derives from the understanding that a child and a non-biological parent may have such a close parent/child relationship that the court will grant the equitable parent custody rights. It seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.
These three requirements let someone be recognized as an equitable father:
- The father and child mutually acknowledge a relationship as father and child;
- The father desires to have the rights afforded to a parent; and
- The husband is willing to take on the responsibility of paying child support.
Not all states recognize equitable fathers, so be sure to investigate your state's laws and/or contact an attorney in your state.
Historically, unwed fathers have enjoyed fewer rights with respect to their children. If an unwed father wishes to retain rights with a minimum of court intervention, he should acknowledge his paternity and, if possible, come to an agreement with the mother confirming his status. If another man becomes the presumed father, retaining full rights for the unwed father becomes difficult.
Assuming that there isn't another man who seeks to be named the child's father, the unwed father can retain visitation rights and seek custody of the child.
Q: If I legally establish that a man is my child's father, is he responsible for child support? How do I get it from him?
A: If paternity is established by one of the methods above, the father is required to provide child support. The father also gets visitation rights and can seek custody of the child.
Once paternity is established, if the father refuses to pay child support, or does not provide enough, he'll be subject to enforcement measures. All states have child support or child welfare agencies which can track down "deadbeat dads" through a variety of methods, including Social Security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don't pay child support.
Q: If I helped raise a child and later discovered they weren't mine, can I sue the mother?
If a father raised a child who the mother led him to believe was his own and later discovered the child was not his biologically, he may be able to sue the mother. However, winning such a lawsuit would be difficult at best.
The case would most likely rely on relevant state laws and whether the mother knew the child was not his and knowingly misled him. Regardless, the advice and assistance of a legal professional who specializes in family law would be extremely valuable for a father in this kind of sensitive situation.
Q: What if I can't afford to file a lawsuit for paternity?
A: Fees required to bring a paternity suit can be costly. There is the cost of legal representation. Depending on where you live and its paternity test processes, you might be required to pay for the testing. Some states have mechanisms which allow paternity suits to be filed by the state at no cost to the mother seeking to establish paternity.
State child support agencies will file the paternity suit on your behalf. Many of these agencies are funded by the federal Temporary Aid to Needy Families (TANF) program. Find out more about TANF and the state agencies which administer the program at the Federal Office of Family Assistance. This is not an exhaustive list, so be sure to explore your city, county and state child support agencies to find out more.
Get Professional Legal Help with Your Paternity Suit
Courts take parental rights seriously. Paternity suits can impact a father's ability to make decisions for his child and his liability to pay child support. These cases create or eliminate inheritance rights. They can make a huge difference in the wellbeing of the children involved.
Paternity cases can be grueling, confusing and emotional. Get experienced guidance from a family law attorney in your area.
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