When it comes to caring for a child, the parent(s) of the child have a legal responsibility to provide for their child. Whether as a result of the responsibilities involved in raising a child, or some other reason, there are some cases in which the paternity of a child may not be clear or may be contested. In legal terms, paternity is the legal relationship between a father and their biological or adopted child that establishes both the father’s rights and obligations when it comes to their child.
Most often the paternity of a child is either known or presumed. It is important to note that most states presume paternity if the two parents of the child are married. Thus, if there is a child born during the marriage, both parents will be presumed to be the child’s parents. No such presumption of paternity exists for unmarried parents. Therefore, paternity must be established in another way, such as the biological father of the child signing the birth certificate at the time of birth, the father signing a declaration of paternity at a later time, or through paternity testing.
A legal paternity test is a genetic DNA test that is used to determine whether an individual is the biological father of a child or not. If the test determines that the individual is the biological father of the child, that test will be filed with the court and the court will legally establish paternity. The biological father will then have all of the legal rights and obligations that biological fathers have regarding their child, including the rights of custody and visitation, as well as the legal obligation to financially support the child.
Financially supporting a child is most often ordered by a court through the non-possessory parent (the parent that does not have primary custody of the child) paying the other parent child support and medical support.
Establishing paternity and ordering a party to get a paternity test in different states is not as straightforward of a process as when the suspected biological father lives in the same state. However, it is still possible to have a suspected father get a paternity test when they live in a different state.
How Can Administrative Agencies Help Establish Paternity?
An administrative agency is an organization that is established by either the federal or state government for the purpose of managing a particular aspect of the federal or state law. In the case of paternity, administrative agencies are often established by state governments for the purpose of enforcing child support and other parental rights.
For example, in Texas the Office of the Attorney General has a Child Support Division that will initiate the legal proceedings and pay costs related to establishing paternity, custody, and child support. Additionally, that administrative agency is also in charge of child support enforcement, should a biological parent fail to properly support their child financially or medically.
When it comes to ordering DNA testing in different states, the administrative agency in charge of establishing and enforcing child support will often have a difficult time properly serving the out of state parent. Most courts will require direct service upon the out of state parent for custody matters.
This means the paperwork will have to be physically served upon them in the other state, or they will have to make an appearance at the case in the home state of the child. For this reason, private attorneys and private process servers will often be used to execute proper service of a paternity lawsuit upon an out of state parent.
How Can Court Order Establish Paternity?
As noted above, if the biological father of a child does not sign the birth certificate, and is not the presumed father of the child given the marriage to the biological mother, a court order will have to establish paternity. Establishing paternity is important for many reasons, including taxes, health care for the child, and numerous other reasons. The biological father may sign an affidavit of paternity, swearing under oath to the court that they are indeed the biological father of a child.
Alternatively, the biological mother of the child may initiate paternity proceedings to have a court establish the paternity of a child. Often these proceedings will involve the suspected father undergoing DNA testing to prove they are indeed the biological father of the child. Once the DNA testing is performed, the court will then accept those findings and either legally establish the paternity of the biological father, or determine they are not the biological father of the child. That court order would then be used to determine the legal rights of both parents, such as the legal right to custody, visitation, and the legal obligation of medical and financial support.
What if Paternity is Established in Another State?
If paternity has already been established in another state, the parent wishing to have that order recognized in their state will need to file the order in that state. For example, if paternity was established in California, including an order for child support for the father, and then the father later moves to Texas, the mother will need to file the paternity and child support order in Texas. States are required to give full faith and credit to judgments and orders from another state.
What if My Child’s Father is on a Military Base Overseas?
If the suspected father of your child is on active duty at a military base overseas, you can still proceed with paternity proceedings. An attorney will be assigned to the suspected father, and the paternity proceedings can proceed forward in order to support the child. The local child support agency will work with the military and the counsel appointed to the father to get a temporary order of child support setup. Of course if the father does not contest paternity, the court would then be able to proceed forward with the proceedings.
It is important to note that a court will not be able to make any final orders until the father is off active duty, unless the father agrees to the proposed orders. If the father acknowledges paternity, a wage withholding order will be sent to the military’s legal department and they will automatically withhold the wages necessary to cover the medical and financial obligations of the child. The administrative agency in charge of child support would then release the funds to the possessory parent (parent who has primary possession of the child).
If the father is unwilling to acknowledge paternity and is on active duty, under the Servicemembers Civil Relief Act, the father will be entitled to a stay of the proceedings until they are off active duty. This means that the mother may be waiting until the suspected biological parent returns from overseas to receive child support. It is important to note that the mother of the child would also be entitled to back child support that should have been paid.
What if My Child’s Father Purposely Leaves the State to Avoid a Paternity Judgment?
If your child’s father purposely leaves the State to avoid a paternity judgment, then a court may be able to bypass the necessity of formal service of process and continue with the paternity proceedings. For example, if the mother can prove that the father is purposefully avoiding service of process, the court may order that informal service of process is acceptable, such as posting the civil suit in a paper or other ways of executing proper service. For instance, some courts may be willing to accept service of process through social media as a means of service of process.
After the lawsuit has been served, or has been deemed served, upon the father, the court may then issue a temporary order of support for the child. If the child’s father does not appear at the final hearing, the court would then enter a default judgment against the child’s father legally establishing them as the father. The biological father could then try to dispute that default judgment by undergoing DNA testing to prove they are not the father.
Often the issue with default judgments is finding the whereabouts of the father and entering a wage withholding order for the support of the child in the state they are found. If the biological father continues to avoid their parental obligations, they may also be subject to criminal penalties, such as jail time. They would also be on the hook for any past due child support, plus interest.
How Does Out-Of-State Establishing Paternity Affect Child Support Payments?
As noted above, states are required to give full faith and credit to another state’s judgments and orders. That includes orders for child support. All that a parent will have to do is contact the state agency in charge of child support enforcement and have them issue a wage withholding order for child support.
Those wage withholding orders would then be sent to the father’s employers and they would automatically withhold wages for payment of child support and back child support (arrearages).
Do I Need a Family Law Attorney to Establish Paternity for a Father Who is Out-of-State?
As can be seen, establishing paternity and child support when the parents live in different states can be a complicated and stressful process. Therefore, if you are seeking to establish paternity for a father who is out-of-state, you should consult with an experienced and local family lawyer. An experienced family attorney will be able to provide you with legal advice concerning the best method for establishing paternity and getting support setup for the child.
A family attorney will also be extremely helpful in cases where the father of the child is avoiding service, or is otherwise difficult to reach. In those cases, the attorney would work closely with private process servers to serve the paternity lawsuit on the father and keep the legal proceeding moving. The attorney will also work hard to set up a temporary order for support as soon as possible for the child. Finally, an attorney will be familiar with all of the state requirements for establishing paternity, and be able to represent the child’s best interests in court.
