The legal term paternity refers to determining the correct father of a child. 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;
- 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.
How Can I Establish 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.
How Does Establishing Paternity Affect Child Support Payments?
As previously mentioned, 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.
Do I Need an Attorney for 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.