Paternity is the status of being someone’s father. The law of paternity is complex and varies from state to state. There is legal paternity, which entails a legal obligation to support a child and rights to custody and visitation, and biological paternity, which is the biological fact of having fathered a child.
Most states categorize fathers in the following ways:
- A father who has acknowledged his paternity: 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 married to the mother when the child was conceived or born;
- has legally agreed to be the father of his wife’s child; or
- has acted and behaved as if the child was his own;
- Unwed Father: An unmarried man who is the biological father of a child to whose mother he is not married; unwed fathers must pay child support if the court finds that they are the biological or acknowledged father. Unwed fathers who make child support payments may also have visitation or custody rights;
- Stepfather: A man married to a woman who had a child with another person. Stepfathers have no legal duty to support the child of a woman who had a child with another person. However, a stepfather can legally adopt their stepchild with the biological or acknowledged father’s consent. If a stepfather legally adopts their stepchild, he then becomes legally obligated to support the child.
In most states, a person who wants to establish legal paternity brings a paternity action. This is a civil action that seeks to establish a man’s status as the father of a child. Paternity is established by a preponderance of the evidence in a civil paternity proceeding. This means that, given the evidence presented, it is more likely than not that the man is the child’s father. Some states require clear and convincing evidence of paternity. These different standards are not often referred to in actual paternity proceedings because courts mostly accept and rely on paternity tests to establish paternity.
Paternity may be established in many ways, including but not limited to:
- DNA Testing: DNA testing is generally done only when one party contests the paternity in a legal action; a lab gathers genetic samples from the child, the mother, and the alleged biological father. The genetic samples are then compared to determine if the father is the biological father of the child; DNA tests are 99% accurate;
- Birth Certificate: The law considers the father’s name is on the child’s birth certificate as an acknowledgement of paternity;
- Legal Declaration: Paternity may also be established by filing a paternity action with the court requesting that the court determine paternity. The court can then issue a paternity order based on the evidence presented;
- Circumstantial Evidence: Paternity may be established when a man presents himself publicly as the child’s father.
How Do Married Couples Establish Paternity?
Again, the law varies from state to state but generally the law presumes that if the mother of a child is married at the time of the child’s birth, the spouse of the mother is the other legal parent of the child.
This rule is known as the “marital presumption of paternity”. This means that the spouse of the biological mother is the other legal parent of a child because they are married. This is true even if the spouse is not in fact the biological father or the mother and spouse are later divorced.
A paternity case is still possible. The paternity case can be brought by the mother who believes that someone other than her legal husband is the father or by the man who believes that he is in fact the biological father of the child.
How Do Unmarried Couples Establish Paternity?
Paternity may be established in a number of ways, including the following:
DNA Testing: DNA testing is generally only conducted when one party contests an allegation of paternity. It is explained above;
Birth Certificate: A father’s name on the child’s birth certificate is considered to be an acknowledgement of paternity;
Legal Ruling: Paternity may also be established by a paternity action when the court determines paternity. The court issues a paternity order based on the evidence presented;
Circumstantial Evidence: Paternity may be established when a man publicly presents himself as the child’s father. Again, the law presumes that a married man is the father of a child born to his wife during their marriage.
Who Can File a Paternity Suit?
A complaint to establish paternity is usually, but not always, motivated by the need to require the father to pay child support. In some states, it is referred to as a “parentage action.”
In most states, the following people or agencies can file a petition to establish paternity of a child:
- The child’s mother;
- A man who believes he is the biological father, who may want to establish his right to visitation or custody;
- The child or child’s guardian, who may seek support, a parental relationship or the right to various benefits, such as veteran’s benefits or survivor, disability or life insurance benefits; or
- A department of social services or other appropriate government agency seeking reimbursement for public assistance paid to the child.
If the case is brought in a state where a person who wants to establish a father’s paternity files a petition, the person who starts the case is called the “petitioner.” The alleged father in the case is the “respondent.”
When Should I File a Paternity Suit?
Filing a lawsuit for paternity is not necessary to establish paternity. There are other ways to go about it. Paternity can be established through the consent of the mother and father. A mother can list a father by name on a child’s birth certificate at the time of its birth. This is not enough in itself to establish paternity but it may establish a paternal relationship if it is not challenged.
Or, a man whom the mother claims to be the father may sign a voluntary acknowledgement so that the father’s name is added to the birth certificate. This establishes paternity for legal purposes. A mother and father who are not married may also voluntarily enter into a voluntary agreement through their attorneys which establishes a paternal relationship; the agreement could also spell out custody and visitation arrangements, as well as child support.
If these measures have not been taken, then the mother, father, the child or a social service agency can file a lawsuit or, in some states, a petition to establish paternity.
There is no statute of limitations for paternity actions in Arkansas, Massachusetts, North Dakota Oregon, Texas, Utah, and Wyoming. There are statutes of limitations in the other states for paternity actions. In all states a paternity action must be brought before the child reaches the age of 18 and in many states, the statute of limitations is several years beyond that.
Nonetheless, a person who wishes to establish the legal paternity of a child should file suit or file a petition, whichever action is appropriate in their state, as soon as possible.
How Do I File A Paternity Suit?
As with any court action, it begins with preparing the necessary documents as required by the court, filing the documents with the court and then serving the documents on the opposing party. If the father is prosecuting the action, the father would serve the documents on the mother of the child. If the mother, the child or a government agency is filing the action, then the documents would be served on the father. A lawyer for paternity lawsuits could be very helpful in making sure that a paternity suit is necessary in a person’s case, in preparing documents and in complying with all local court rules.
The court will set a date for hearing. Usually, proof would depend on having a paternity test done. The court can require the father to have a paternity test done and to submit the results to the court. The court will rely heavily on the results of the DNA test to decide the question of paternity, because it is 99 percent accurate.
A person who is found to be the father of a child will also be ordered to pay child support in an amount that the court will determine. If the father also wants to have custody or visitation rights, the court can decide these issues as well.
Keep in mind that a paternity action is not necessary if one of the following is true:
- The parents are not married but signed a voluntary declaration of parentage or paternity;
- The parents are married, including same-sex marriages, or are registered domestic partners;
- The appropriate child support agency already filed a paternity and child support case in court;
- In some states, the parents are involved in a domestic violence restraining order case, AND they both agree on paternity of their child and to the court’s entering a judgment about paternity.
A father should understand that establishing his paternity could make him liable for paying child support and possibly back child support.
Do I Need a Lawyer If I Have Issues with a Child’s Paternity?
If a person wants to establish the paternity of a child, it is wise to consult an experienced family law attorney before starting. It is important to share the facts of your case with an attorney who can explain to you how paternity is established in court and what all of the consequences will be.
An experienced family law attorney can also explain the process to you; the attorney may be able to negotiate a solution to a paternity dispute without the expense and bureaucracy of a lawsuit. You may get the best possible outcome if you have an experienced family law attorney representing you.
