Paternity Suit FAQs
When the presumed father of a child denies parentage, 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. The presumptive father also may file suit if he'd like to establish paternity that has been denied by the mother, as can a child, although these are much less common.
Below are answers to some of the most frequently asked questions about paternity suits.
Q: How is the father of a child legally determined?
A: Assuming there's no agreement between the parents, either the mother, alleged father, or even in some cases the child can bring a paternity suit to identify the father of the child. Most paternity actions are filed to establish financial or moral responsibility, gain visitation rights, or settle other issues in controversy 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 biological father of the child. After a determination is made, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.
Q: Is the biological father the only person who can be legally recognized as the father?
A: The short answer is no, a man other than the biological father may be legally designated as the father of the child. But 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 situation.
There are several legal classifications of fathers; and once established, paternity is difficult to change and unless there is a private agreement between the father and mother to the contrary, fathers are obligated to pay child support.
An acknowledged father is the biological father of a child born to unmarried parents who admits that he's the father. Acknowledged 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 when the child was either born or conceived;
- 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. This legal claim is generally made by non-biological fathers during divorce proceedings.
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.
The three requirements to be recognized as an equitable father are:
- 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 and 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 the mother led him to believe was his own and he later discovered the child was not his biological child, he may be able to sue the mother. However, winning such a lawsuit would be difficult at best and would most likely rely on several other factors, e.g., relevant state laws, whether the mother knew the child was not his and knowingly misled him into raising the child, etc. 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 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, although there's generally no fee for the paternity test itself. In almost all states there are 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.
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