Paternity is the legal process utilized by the court to determine the child's biological father. Until the court establishes paternity, the child's father does not have any rights or responsibilities to the child.
This means that there is no duty to pay child support or the right to demand custody or visitation with the child. Either parent can request the court to establish paternity, or the court may open a paternity case on its own. While it is fairly straightforward to establish a child's biological mother, it can be more difficult to identify a child's biological father if there are any questions as to who that may be. Paternity issues most often arise in cases involving:
- Child support;
- Adoption;
- Inheritance;
- Custody and visitation rights;
- Health care; and
- Protecting and asserting parental rights.
Paternity is not automatically presumed when an unmarried couple has a child. The court will need to establish paternity before they will issue any orders concerning the relationship between the child and their father, especially a child support order. When an unmarried couple has a child, it is important to establish the father's paternity as soon as the child is born. This protects all parties involved including: the child, the mother, and the father. Once paternity has been established, a child may receive child support, life insurance, and health insurance and disability benefits.
Typically the established father will need to provide child support until the child turns eighteen. Some state laws regarding the issue say that support should last until the child turns eighteen, or graduates high school. The child's father will need to provide child support even if they are not actively involved in the child's life. It is important that the child receives support from their father. However, it is also important that the father's rights are protected, and that they are given the option of petitioning for visitation and custody rights if they wish.
What Happens During the Paternity Case?
Paternity cases, sometimes referred to as parentage actions, usually start when either parent or a state prosecutor files a formal request with a court to establish paternity. Acknowledged or alleged fathers do not have custodial or visitation rights with their children until the judge issues a court order about paternity. It is common for the father to file the paperwork to do so.
Nowadays, a simple blood test is often all the court needs to prove paternity. DNA or other blood tests are approximately 99.9% accurate at determining the child's biological father. If a court establishes paternity, the judge will order the father to pay child support for the child and award him custody or visitation rights.
In some cases, the wrong person can be deemed the father of a child. For instance, a husband can later discover that he is not the father of his child or someone who mistakenly thought he was the father signed an acknowledgment of paternity. Since paternity creates financial responsibilities, men can seek to disestablish paternity or challenge paternity.
But some issues arise with both divorce and annulment, especially if there are children involved. A child's right to be supported by both of his or her parents is valid regardless of the parent's marital status. Upon divorce or annulment, a court may order the presumptive father to pay child support or award him custody rights to the child.
Establishing Paternity in Court
Paternity laws are complex and vary by state. The legally recognized father may not necessarily be the biological father. Most states categorize fathers in the following ways:
- Acknowledged Father: An unmarried man who has admitted to being the child's father. Acknowledged fathers generally must pay child support;
- Presumed Father: A presumed father is a married man who was either married to the mother when the child was conceived or born; legally agreed to be the father of his wife's child; or, acted and behaved as if the child was his own;
- Unwed Father: An unmarried man who has a child with a woman. Unwed fathers must pay child support if the court finds that he is the biological or acknowledged father. Unwed fathers who make child support payments may also have visitation rights; or
- Stepfather: A man who marries a woman who had a child with another person. Stepfathers have no legal duty to support the child. However, a stepfather may adopt their stepchild with the biological or acknowledged father's consent. If a stepfather legally adopts their stepchild, he must support the child.
In most states, paternity is established by a preponderance of the evidence in a civil proceeding. What this means is that it must be more likely than not that the man is the child's father. Some states apply a higher standard that requires clear and convincing evidence of paternity. These different standards are rarely utilized due to the fact that courts mainly rely on paternity tests to definitively establish paternity.
Paternity may be established in many ways, including but not limited to:
- DNA Testing: DNA testing is generally only conducted when one party contests the paternity allegations. A paternity test would then be ordered, and a lab would then gather genetic samples from the child, the mother, and the man who may be the child's biological father. The genetic samples would then be compared to one another with over 99.9% accuracy to determine if the father is the biological father of the child;
- Birth Certificate: If the father's name is on the child's birth certificate, that is considered to be an acknowledgement of paternity;
- Legal Declaration: Paternity may also be established by filing a paternity action with the court requesting that the judge determine paternity. The court can then issue a paternity order based on circumstantial evidence, as well as any extrinsic evidence, such as a DNA test; and/or
- Circumstantial Evidence: Paternity may be established when a man presents himself publicly as the child's father. As previously mentioned, a married man is presumed to be the child's father if the baby was born to his wife during their marriage.
Voluntary Acknowledgment of Paternity
The legal term paternity is a complex one that varies from jurisdiction to jurisdiction. At its core, the word is meant to convey a set of rights and responsibilities that will have the power of the courts backing them up.
One of the common ways many states use to establish paternity is through a voluntary acknowledgment of paternity, which can then become the base to bring other family law related suits like child support petitions, custody petitions, and suits for visitation rights. So how does a voluntary acknowledgment of paternity work, and what is its effect once file and accepted?
How Do You Get a Voluntary Acknowledgment of Paternity?
A voluntary acknowledgment of paternity is completed through a form that both the mother and the purported father sign, and then file with the proper state office. In most states, this is the vital records office that keeps track of births, deaths, marriages, and divorces.
The office then puts the acknowledged father's name on the child's official birth certificate. The parents can choose to do this at the hospital or wherever the child is born, but can also be completed later. Regardless of when, it must be signed by both the mother and the father.
Who Can Sign a Voluntary Acknowledgment of Paternity?
In many states, if a couple is married, then paternity is assumed to be the mother's husband and thus the couple has no need of a voluntary acknowledgment of paternity. But for couples who are not married, this is usually the way that the parents establish legal paternity. Although the obvious answer is that only the biological father should sign an acknowledgment, this does not necessarily have to be the case.
Sometimes the biological father of a child is either out of the picture or unknown, and a man willing to take on both the legal and moral responsibilities of being the child's father can sign one to formally establish a parental bond with the child. But it is wise to issue a word of caution.
A voluntary acknowledgment of paternity carries with it all the legal rights and responsibilities that any parent has to their child, including potentially long-lasting financial ones like child support. Once paternity is legalized through an acknowledgment, it can be difficult to withdraw..
What If a Father Refuses to Sign a Voluntary Acknowledgment of Paternity?
If the father of a child refuses to sign a voluntary acknowledgment of paternity, then that does not mean that they can walk away without any obligations. The child's mother can then choose to file a lawsuit to establish the child's paternity through a court order, whether he likes it or not.
The court will order that the alleged father take a state approved DNA test to determine if he indeed the father, and if the results match the DNA of the child, then make those results legal. The mother can then use the results to file further suits to collect child support and resolve any issues concerning custody and visitation rights.
Withdrawing a Voluntary Acknowledgment of Paternity
There are circumstances where a man signs an acknowledgment, only to learn shortly thereafter that they are not the father. For these situations, there is a small time frame after the child is born (usually 60 to 90 days, depending on the jurisdiction), that either the mother or father can withdraw a voluntary acknowledgment of paternity if it becomes clear that the man is not the biological father.
However, as time passes, it becomes much harder to do so. The legal father must prove that he was the victim of a fraud, material mistake of fact, or duress to withdraw paternity later on in the child's life. This is not meant to punish the presumed fathers or reward mothers, but to protect the child and make sure they will be taken care of.
Challenging a Voluntary Acknowledgment of Paternity
So what if another man signs an acknowledgment, but another man believes he is the child's biological father? Can he challenge the voluntary acknowledgment of paternity? In most states, he cannot.
Instead, he can file a lawsuit with the appropriate court to establish his legal paternity to trump the voluntary acknowledgment. Here, timing is key as well. The statute of limitations to file such a suit is usually around four to five years (depending on the state) after the acknowledgment is filed. Make sure you check with a licensed attorney in your state to determine the statute of limitations that apply to you.
How Can an Attorney Help Me in Establishing Paternity in Court?
Family law matters are complex, and must adhere to specific state laws. A skilled and knowledgeable family law attorney would be beneficial in establishing paternity. An experienced family law attorney can help you understand your state's laws and requirements, as well as guide you through the process of establishing paternity. Finally, an attorney will be able to represent you in court as needed.
Once paternity has been established, the child's father may be ordered to pay child support. A father who is not married to the mother of his child will not usually be awarded custody of the child, if the mother is providing reasonable care. However, should circumstances change, the father will likely be given custody preference over a third party such as grandparents. However, it is important to remember that a Court will order custody solely based on the child's best interests.
The father's paternity must be established in order for the child to receive child support. A court cannot order support payments until paternity has been established and determined. Once the court has legally determined the father's identity, they may order support regardless of where the father lives or if they have an active role in their child's life. As such, this includes a father who lives in a different state than his child.
