As a general concept, “paternity” refers to a child’s father. But general concepts can have more specific legal meanings, and corresponding rights and responsibilities. With paternity comes the obligation to support minor children, as well as access to custody and visitation and the ability to make important decisions in the child’s life.
And while the law may assume paternity in some cases, in others, mother and fathers must establish it, often contentiously. Here is what you need to know about establishing paternity and its legal effect.
While it may be obvious to some parents who the legal father of a child is, paternity is not always automatically established. In general, state laws provide for presumed paternity as well as voluntary and involuntary paternity proceedings.
Many states presume that a child born during a heterosexual marriage is the husband’s offspring. In some states, parties can challenge this presumption by undergoing DNA testing, which can conclusively prove otherwise. However, in other states, there is no DNA testing or other method to disprove paternity that is legally available if a child was born during an intact marriage, even if all parties concerned know that the husband is not the biological father of the child. This can lead to non-biological fathers being responsible for the needs of the children, including the legal duty to pay child support in some instances.
Other instances where states may presume paternity include:
With steadily rising numbers of children being born out of wedlock and a society that no longer stigmatizes having children outside of marriage, paternity courts are overrun with unmarried litigants seeking to establish paternity, custody, visitation, child support and related matters regarding their children. Fortunately, in court is not the only means of establishing paternity, and family laws are changing to accommodate the reality of unmarried parents and their children.
In order to ease the establishment of paternity, many states in recent years have provided a mechanism by which a putative father, or the alleged father of a child born out of wedlock, can voluntarily establish paternity by executing a sworn paternity affidavit or acknowledgment, which, when completed, establishes the father as the legal father of the child. Many couples who are unmarried, but intend to reside together with their child as a family unit, choose to execute such an affidavit or acknowledgment, thus obviating the need for formal paternity proceedings in court.
The downside to paternity affidavits, however, is if the parents’ relationship sours: while the parties have settled the paternity issue, there are no formal court orders regarding custody, visitation, and/or child support. In this case, the family must petition the family court in order to establish applicable court orders regarding their child.
A similar situation arises when a putative father signs the paternity affidavit or acknowledgment, while at the same time realizing that he is not, or at least might not be the biological father of the child. Likewise, a putative father might rely on the mother’s assertions that he is the only possible biological father of the child in choosing to sign the informal documents needed to establish paternity.
In many jurisdictions, such a father remains the legal father of the child, even if it is later proven or alleged that he is not the child’s biological father. In these cases, there may be no legal recourse for a legal father who is in fact not a biological father, and who is bound to legally support the child throughout his or her minority.
State laws also provide for the establishment of paternity through formal court proceedings, whether it is on a voluntary or involuntary basis. Typically, if paternity has not been otherwise established by affidavit or acknowledgment, the parties are given the opportunity to undergo genetic testing, or DNA testing, in order to determine whether a putative father is the biological father of a child.
A mother may file a paternity lawsuit against a probable father to secure child support payments, or a father may file to have paternity established to gain custody or visitation rights. Based on these filings, courts may order DNA testing to prove paternity.
Given the accuracy of DNA testing, participating in a DNA test usually resolves the issue of whether a putative father is in fact the biological father of the child. The parties then would proceed to a family court hearing to establish paternity and request orders regarding custody, visitation, child support, and/or other related issues.
A man who is not married to a child’s mother does not have any parental rights until he establishes paternity. He can do this by signing an acknowledgment or by a paternity test. The father may acknowledge his paternity simply by signing his name on the birth certificate or by consenting to the placement of his name on the birth certificate. In some states, the father may have to submit a formal affidavit attesting to his paternity.
As noted above, parents have a legal obligation to support their minor children. So, a father whose paternity has been legally presumed, voluntarily assumed, or otherwise established must support his children.
For fathers who don’t reside with their children, this usually takes the form of child support payments made to the other parent. The amount of child support owed is generally set by state law formulas and depends on the needs of the child and the financial status of both parents.
Parents also have rights to custody and visitation, and establishing paternity can help fathers secure these rights. All parties should know, however, that courts make decisions regarding child custody and visitation in the child’s best interests, and these decisions are often independent of child support orders. So, custody and visitation can’t be withheld for non-payment of child support, and vice versa.
Establishing paternity can also impact inheritance rights for the child, should the father pass on without a will. And possible fathers may not be able to challenge an adoption without legally establishing paternity first.
While paternity doesn’t always have to turn into a legal battle, it can be legally complicated and emotionally contentious if it does. That’s why it’s always important to have an experienced family law attorney on your side.
Even the most common family law issue can be intensely stressful to you. A knowledgeable paternity lawyer can guide you through the process. An attorney will coach you on how to proceed and give expert guidance on hearings, negotiating, trials, and enforcing court orders. Take the first step now and talk to an experienced local paternity attorney.