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Paternity Law Overview

In general, "paternity" refers to a child's father. But general concepts can have more specific legal meanings, and corresponding rights and responsibilities. With paternity comes an 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.

While the law may assume paternity in some cases, in others, mothers and fathers must establish fatherhood. Here is what you need to know about establishing paternity and its legal effect.

How to Establish Paternity

While it may be obvious to some parents who the legal father of a child is, paternity is not always automatic. In general, state laws provide for presumed paternity as well as voluntary and involuntary paternity proceedings.

Can You Get a Paternity Test While Pregnant?

Prenatal paternity testing is a procedure that can take many forms. The most non-invasive test involves a blood sample taken from the mother (generally after the 8th week of pregnancy) and the alleged father (or fathers). Fetal DNA present in the mother's bloodstream at this point of pregnancy provides genetic material for establishing paternity.

More invasive methods also exist but may carry some level of risk to the mother or baby. In some cases, amniocentesis or chorionic villus sampling (CVS) with an OB/GYN can also produce paternity results. Some states, such as New York, disallow such test results from being used in court.

Presuming Paternity

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 show paternity. However, other states do not allow DNA testing to disprove paternity 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:

  • The presumed father marries the mother after conception or soon after the child was born and agrees to have his name put on the birth certificate
  • The father welcomes the child into his home and openly holds the child out as his own or otherwise supports the child
  • The father and child have a close parent/child relationship and the state grants equitable parent custody rights

How Long Does a Father Have to Establish Paternity?

In situations where both the father and the mother wish to establish paternity, they may fill out a medical form attesting to the courts that the father is claiming paternity up-front. In Florida and Washington, D.C., this form is referred to as a Voluntary Acknowledgement of Paternity (VAP) form.

In cases where an alleged father is seeking to establish paternity without the express consent of the mother, courts typically do get involved. A mother, alleged father, and child can be subjected to genetic testing by court order, with most jurisdictions requiring a certain standard of surety based on the test results. For example, in Delaware paternity tests, a 99% likelihood of genetic parentage on the alleged father's part is required to declare paternity.

There may also be a time limit in which an alleged father must file for paternity proceedings. For example, in Delaware, an alleged father unilaterally seeking to establish paternity must file a claim before the child's 18th birthday.

Voluntary Assumption of Paternity

It is more common now for children to be born outside of marriage. When children are born out of wedlock, parents must turn to paternity courts to establish paternity, custody, visitation, child support, and related matters regarding their children. However, going to court is not the only means of establishing paternity, and family laws are changing to accommodate the reality of unmarried parents and their children.

To ease the establishment of paternity, many states provide 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. The affidavit can establish 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, avoiding the need for formal paternity proceedings in court.

A downside to paternity affidavits is if the parents' relationship sours, there may be no formal court orders establishing paternity for the purposes of custody, visitation, and/or child support. In this case, the family must petition the family court to establish applicable court orders regarding their child.

In many jurisdictions, a father may remain the legal father of the child, even if it is later proven that someone else is the biological father. This includes where a putative father signs the paternity affidavit when realizing that he may not be the biological father of the child.

Similarly, where a putative father relies on the mother's assertions that he is the only possible biological father of the child and signs a paternity affidavit, there may be no recourse for a legal father who is not the biological father. The non-biological father may still be bound to legally support the child.

Involuntarily Establishing Paternity

State laws also provide for the establishment of paternity through formal court proceedings on an 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, to determine whether a putative father is the biological father of a child.

A mother may file a paternity lawsuit against an alleged father to secure child support payments. Alternatively, a father may file to have paternity established to gain parental, 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 the biological father of the child. The parties could then proceed to a family court hearing to establish paternity and request orders regarding custody, visitation, child support, and/or other related issues.

Can You Force Someone to Get a Paternity Test?

While courts cannot order a person to be physically detained and submitted to blood testing to establish paternity, there may be penalties for alleged fathers who refuse to submit to a court demand to provide such a sample. Many states consider a refusal to provide a blood sample for a court-ordered paternity test to be contempt of court, with the possibility of a summary judgment of paternity against the alleged father.

Things are more complicated when courts consider ordering a mother to submit her blood sample if the situation is reversed. If the child is old enough to have formed a bond with a new father figure in their life (five years in some states), the court will not order the mother to submit a blood sample to compare against that of the alleged father filing suit.

When Does an Unmarried Father Acquire Parental Rights?

A father who is not married to a child's mother does not have any parental rights until establishing paternity. The father can do this by signing an acknowledgment or through 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.

What Does Chain of Custody in Establishing Paternity Mean?

With regards to establishing paternity, the chain of custody refers to the formal documentation surrounding the collection, packaging or storage, transport or movement, receipt, and analysis of test samples. If there is a missing link in a chain of custody with regard to a blood sample (for example, documentation surrounding the transport of the sample from the subject to the lab is missing or has been suspiciously altered), the results of the test may be inaccurate.

How Does Paternity Affect Property and Inheritance?

Establishing paternity can affect property rights and inheritance. However, even without paternity established, a father can pass on property to their child. An alleged father who has not formally established his paternity can leave property to their presumed child in a will or provide for the child in a trust.

Alleged fathers looking to pass down some form of inheritance to their presumed children should establish a formal will of their own declaring such a transfer or establish lawful paternity.

The Legal Effect of Proving Paternity

Legal parents have a legal obligation to support their minor children. A father whose paternity has been legally presumed, voluntarily assumed, or otherwise established must support any minor children.

For fathers who do not reside with their children, support usually takes the form of child support payments made to the custodial 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. However, courts make decisions regarding child custody and visitation in the child's best interests, and these decisions may be made independent of child support orders.

Establishing paternity can also impact inheritance rights for the child, should the father pass on without a will. Other legal effects include the limitation of fathers 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. That's why it's important to have an experienced family law attorney on your side.

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