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Presumed Father Laws

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What is a “Presumed Father”?

In a paternity setting, a “Presumed Father” is a person who is recognized under law to be the legal father of a child.  The person becomes the child’s legal father by operation of law, based on their conduct and the circumstances surrounding their relationship with the child.

Under most state laws, a person is a child’s presumed father if:

  • The man was legally married to the child’s mother at the time of conception or birth (in some states, the person is not a presumed father if the couple was separated at the time)
  • The man made an attempt to marry the child’s mother, and conception or birth occurred during the attempted marriage (even if the marriage never became valid)
  • The man married the child’s mother after the birth and agreed to place his name on the child’s birth certificate, or agreed to support the child
  • The man openly represented the child as his own, and welcomed the child into his household or home

Thus, presumed father laws make a person who is not the biological father legally responsible for the child.  A presumed father takes up those rights and responsibilities associated with being a legal parent, such as child custody/visitation, and providing the child with basic necessities through child support.  As in any legal hearing involving children, any decisions regarding presumed fatherhood need to be made in the child’s best interest

Can the Status of “Presumed Father” be Challenged?

In the majority of jurisdictions, once a man is named a presumed father, their legal responsibility for the child remains effective until they are successfully challenged through formal legal proceedings.  These court hearings are known by a number of names, including: paternity suits, filiation hearings, parentage actions, or establishment hearings.

But in a few jurisdictions, the status of presumed father cannot be challenged, even if blood testing shows that the person is not the child’s biological father.  The reasoning is that the man has taken affirmative steps demonstrating their intent to assume legal responsibility for the child, such as signing off on the birth certificate. 

In order to overturn the status of presumed father, the individual usually needs to present evidence related to the basis of their presumed father status.  For example, if they were named a presumed father because of marriage to the child’s mother, the man would need to prove that they weren’t married to the mother at the time of the child’s birth.  Or, they may need to prove that they were not the person who signed the child’s birth certificate. 

What are the Legal Implications of Being Named a Presumed Father?

If paternity is established through presumed father laws, the presumed father is legally obligated to support the child.  As mentioned, they are also entitled to custody and/or visitation rights, if they are deemed eligible.  Thus, if a presumed father refuses to render child support, they may be subject to the various child support enforcement measures, such as wage garnishment.  Failure to follow court-ordered child support orders can even result in penalties for the presumed father, such as a contempt order.

What is an “Equitable Father”?

An equitable father is similar to a presumed father, in that a non-biological father can assume legal responsibility for a child.  However, equitable fatherhood is pursued through a mutual desire by both the parent and child that the man serve as the child’s legal father.  In other words, equitable fatherhood occurs when the relationship between the child and the man is so close that it is in the child’s best interest for the man to be named legal father.  In some cases, the legal relationship may even be encouraged by the child’s biological parents.

The requirements for legal recognition as an equitable father are:

  • Both the man and the child mutually acknowledge their relationship as father and child;
  • The father desires the legal rights granted to a parent; and
  • The man is able and willing to incur the responsibility of child support.

Is a Lawyer Necessary for Issues With Presumed Father Laws?

Paternity actions and presumed father laws can often present various legal challenges.  It is in your best interest to hire a family lawyer if you have any questions, issues, or legal disputes involving presumed father laws.  A highly qualified and experienced family attorney in your area will be able to provide you with the legal representation and advice that you and your child need. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 11-19-2017 11:05 PM PST

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