Presumed father laws are laws that determine whether a person is considered to be a child’s father under the law. Under certain circumstances, In many instances, a father who is not the biological father of a child will be presumed, under law, to be the father.
Under the law, a person is regarded (presumed) to be the father of a child if certain facts are present. Presumed father laws help to establish paternity. A person with paternity has the legal status of fatherhood. A person with paternity, as the father, may also be entitled to child visitation rights or child custody rights.
Presumed fathers are also responsible for child support. If a presumed father fails to provide child support, the presumed father can be subject to income garnishment or other measures (such as garnishing of a state or federal tax refund) to ensure the child support is paid.
Under state law, a presumption of paternity exists if certain circumstances are present. The presumption exists:
- If, at the time the child was conceived, the man was lawfully wed to the child’s mother.
- If, at the time of the child’s birth, the man was lawfully wed to the child’s mother.
- If the child is born within a certain amount of time after the marriage is terminated. Each state sets its own time frame here.
- Colorado, for example, has a 300-day time frame. If a child is born within 300 days after divorce, the ex-spouse is presumed to be the father.
- If there is an attempt to get married, but the marriage is invalid for some reason, such as minority (one would-be spouse is too young) or bigamy (one spouse is already lawfully married to another person). If, during the attempt, a child is born, then the man is presumed to be the father.
- If, after the child is born, the man attempts to marry the child’s mother, AND demonstrates an intent to become a father. Such intent is demonstrated by:
- The man’s adding his name to the birth certificate of the child; or
- Agreeing to support the child by paying child support
- Agreeing to visit the child
- If, after the child’s birth, the man publicly represents that the child is his, and shows “to the world” the child is his. This can be done by including the child at family gatherings, or welcoming the child into his existing home.
In some instances, even though the law presumes that a spouse or ex-spouse is the father, the father many not be the biological father; someone else is.
In most jurisdictions, once the presumption of fatherhood is made, the presumed father’s legal obligations to the child continue. They continue unless and until a family court proceeding called a paternity suit is filed. A paternity suit is a formal proceeding. In this proceeding, the parties provide evidence that establishes paternity.
A paternity suit can be filed by:
- A presumed father who does not believe he is the father.
- A mother who believes that a man other than her spouse is in fact the child’s father.
- A man who is not married to the mother, but who believes he is the biological father, may also file the suit.
Regardless of who files, the court, when it hears the paternity suit, will require DNA testing to determine the identity of the biological father.
The individual whom the results indicate is the biological father, is legally obligated to support the child. This biological father must pay child support. The amount of support is based on that person’s and the mother’s income, and the best interests of the child or children.
The biological may request custody or visitation rights. When evaluating this request, courts look at whether awarding the rights is in the child’s best interests. Under the “best interests of the child” standard, a court evaluates the ability of the biological father to meet the child’s needs. The child’s needs are given primary concern, over the biological father’s own preferences.
A parent who is not a biological parent may request the right to assume legal responsibility for the child’s welfare. To be recognized as an equitable father, the following requirements must be met:
- The father and child must mutually acknowledge that their relationship is one of father and child.
- The man demonstrates a desire to take on parental responsibilities, including payment of child support.
- The man wishes to be granted parental rights, such as custody or visitation.
If these requirements are met, the law will treat the man as if he is the legal father. The equitable fatherhood proceeding allows a non-biological parent to become a legal one.
If you are seeking to establish paternity, or are in a dispute involving paternity rights or obligations, you should contact a family lawyer or a father rights attorney. An experienced attorney can advise you on the laws that apply to your situation. This attorney can also represent you in court.