Paternity Law and Legal Definition
Paternity is defined as the quality or state of being a Father. The person wanting to establish Paternity can either be the Mother, Father, or child, depending on the individual desires of the parties involved. With science giving us more accurate testing, the matter of establishing paternity is easier and more reliable than in the past. DNA testing methods include SWAB Test and DNA Genetic Identity. DNA testing centers are easy to locate and the costs are reasonable. For this reason, most paternity matters are settled prior to trial. In addition, Complaints and Petitions to establish Paternity are now often routine and agreed to by all parties. The resulting child support and custody proceedings are also involved.
There are three main ways in which paternity is typically established; by a paternity affidavit, by an administrative order based on genetic test results, or by a court order. Some state laws provide that both persons who sign the paternity affidavit waive any right to bring a court or administrative action to determine the parentage of the child other than for purposes of rescinding the affidavit. If genetic test result is returned which identifies the father, an administrative order of paternity is issued and the matter is set for an administrative support action.
Children born to unwed persons do not automatically have a legal Father without a Paternity action establishing the identity of the Father, whether agreed or contested. Note: Some States allow the establishment of Paternity by the execution of an Acknowledgment of Paternity form without a formal Court action.
Reasons to Establish Paternity:
- Identity: To provide the child with a needed identity.
- Health: It is important to know the health history of both the Mother and Father for medical care and treatment of the child.
- Support: It takes two to fairly support a child in today's world to the extent of their ability.
- Benefits: Establishing Paternity allows the child to be covered by health insurance, social security, inheritance and veteran's benefits.
- Public Assistance: Paternity also means the parties can seek public assistance where they qualify.
- Inheritance: Establishing paternity may entitle such child by succession, inheritance or distribution, to take real and personal property by, through, and from his or her father and mother.
How to Establish Paternity:
- Paternity Court Proceeding
- Voluntary Acknowledgment of Parentage or Paternity (in some States).
How do you challenge Paternity:
- Contested Paternity Action (Complaint to Establish Parental Relations or similar proceeding)
- Revocation of Voluntary Acknowledgment (if within certain rules)
- Can be filed by the alleged Father, Mother, Child, or Child Support Division of the State.
- Paternity testing can be ordered by the Court in most States. The Mother, Father and child can be ordered to submit to testing.
- Testing can be by blood tests, swab test or other methods to obtain DNA samples.
- Generally, testing is paid for by the Father if testing is positive, or the mother if testing is negative. The Parties may also agree to how the testing will be paid.
Birth Certificate: The Father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the Court orders the birth certificate to be changed to reflect the Fathers name.
Child's Name: When the child is born, the Mother usually establishes the name of the child. If the Mother and Father acknowledge Paternity and complete the application for a birth certificate they can both choose the child's name. If the name is not established by this means, the Court can order the change of the child's name at any time.
Marital Status: Most paternity actions involve a child born out of wedlock. Paternity actions also occur between married persons where someone other than the Husband is the Father of the child, or where the Husband has fathered a child outside his marriage. There is a presumption that a child born to a married woman is the child of the husband. However, this presumption can be overcome by DNA and other evidence. In some states, the Mother and Husband can sign an "Affidavit of Denial of Paternity" where both agree that the Husband is not the Father of the child.
Age of Parents: Generally, the age of the parents does not matter and parents of any age can establish paternity.
Custody: Custody of a child can either be awarded to the Father or the Mother in Paternity actions, depending on the facts. Mothers receive custody more often but Fathers are being awarded custody under certain circumstances. The Parties may also sign an agreement addressing this issue that the Court may consider in awarding custody.
Child Support: Generally, the same rules that apply to child support in divorce actions, also apply to child support in Paternity actions. Either party can be ordered to pay child support to the other. Some Courts will also award back child support relating back to the date of birth or a specific number of years. The Parties may also sign an agreement providing for the payment of child support to be approved by the Court.
Visitation: If the Parties cannot agree to visitation rights, the Court may be petitioned to request visitation rights. Attorneys: If the parties cannot agree on paternity, custody and child support, you should seek the assistance of an attorney who routinely handles paternity matters. This is not a proceeding where self representation is advisable.
Voluntarily Acknowledging Paternity: In most cases, you may elect to voluntarily acknowledge paternity with or without DNA testing. Once you agree, you may or may not be able to revoke the acknowledgment depending on your State.
Laws: State laws vary about the procedures and rules for establishing paternity. Some call the action a Complaint for Legitimization. Uniform Acts have been developed for adoption by States including the Uniform Act on Paternity, 1960, Uniform Parentage Act, 1973 and the Uniform Putative and Unknown Fathers Act, 1988. States that adopted the Uniform Parentage Act include Alabama, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, Washington and Wyoming. States adopting the Uniform Act on Paternity include Kentucky, Maine, Mississippi, New Hampshire, Rhode Island and Utah.
Action by Child: An action for paternity may also be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity. Attempts to limit the right of the child to file for paternity have generally been ruled unconstitutional by the Supreme Court.
Action by Parent: Some States limit the time period within which a parent may seek to establish Paternity. You should check you State law for current laws but at the writing of this the time periods were as provided below. Special time periods may apply if the child is born to a husband and wife. For example, in California, a husband only has 2 years to file a paternity action.
No Time Limit: Arkansas, Georgia, Massachusetts, Oregon, Rhode Island, South Dakota, and Virgin Islands.
The State's "Age of Majority": Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Kansas, Kentucky, Louisiana, Maine, Minnesota, Missouri, Montana, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Virginia, Washington, West Virginia.
- Age 18: Mississippi
- Age 19: Alabama, New Hampshire and Wisconsin
- Age 19: Age of majority plus one year: Iowa and Tennessee
- Age 20: Two years after child's 18th birthday: Texas
- Age 21: Vermont and Wyoming
- Age 21: Three years beyond the child's 18th birthday: Hawaii, Nevada, New Mexico, and North Dakota,
- Age 22: Four years after the child's 18th birthday: Florida
- Age 23: Ohio
- Five years beyond child's 18th birthday: New Jersey
- Four years after child's birth if brought by mother or alleged father;
- 18 years after child's birth if brought by guardian or next-friend of child: Nebraska
DNA Testing: DNA testing which creates a positive reading creates a rebuttable presumption that man is the Father of the child. The threshold percentage varies from State to State as follows:
- 95%: Alaska, Arkansas, Arizona, Florida, Iowa, Montana, New York, North Dakota, Ohio, Oklahoma (Conclusive if 98%), and Puerto Rico (Conclusive 98%)
- 97%: Alabama, Colorado, Georgia, Kansas, Massachusetts, Maine, New Hampshire, North Carolina, Rhode Island, South Carolina, and Wyoming.
- 98%: Missouri, Vermont, Virginia, Washington, and West Virginia.
- 99%: Connecticut, Delaware, District of Columbia, Hawaii, Indiana, Kentucky, Michigan, Minnesota (Temporary Orders With 92%), Mississippi, Nebraska, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, and Wisconsin.
- 99.9%: Louisiana.
- California-Paternity index of 100 or greater per California Family Code Section 7555(b)(2).
Q: What is paternity?
A: Paternity means being declared the legal father after the child is born. If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established.
Q: Does it matter how paternity is legally established?
A: No. Whether paternity is established voluntarily, administratively or by court action, the result is the same. In each case, the biological Father becomes the legal Father.
Q: What is voluntary paternity establishment?
A: People may believe that paternity can only be legally established by filing a case in court and having a judge decide the issue after testing is done or other proof is submitted. However, if both parents agree who the biological Father is, legal paternity often can be established by a simple process that doesn't require a court hearing in most States. This is called voluntary paternity establishment.
Q: What if the man is not sure he is the Father?
A:If both parents are willing, they may take a genetic test (usually a blood test) to determine if the man is the biological Father.
Q: Are genetic tests accurate?
A: New methods of scientific testing are nearly one hundred percent accurate in proving whether a man is the father of a child. Most testing laboratories now use DNA testing. The test results can show conclusively if a man is not a child's father or can show that a man is the Father to a high degree of certainty.
Q: What if the Mother is married to someone other than the biological father?
A: Generally, if the Mother was married any time in the ten-month period before the baby is born or when the baby is born, the Husband is presumed to be the child’s legal father in virtually all States. In this situation, the voluntary process to establish paternity for the biological Father can only be used if the Husband gives written consent to another man being declared as the Father. If the husband will not consent, court action may be necessary to establish paternity. If the Husband cannot be located after reasonable effort, paternity may be established without his consent.