When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.
But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.
Establishing Paternity After Birth
If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.
Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.
Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.
Filing a Paternity Lawsuit
If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.
If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.
Settling Before the Verdict
At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.
Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.
Q: How does the system legally determine the father of a child?
A: Assuming there’s no agreement between the parents, either the mother, alleged father, or even in some cases the child or a state agency can bring a paternity suit to identify a child’s genetic father. Most paternity actions are filed to establish financial or moral responsibility, gain visitation rights, or settle other controversial issues between the parents.
If the circumstances warrant, a judge will order a blood test from which DNA testing can conclusively determine whether the alleged father is the child’s biological father. After science determines a genetic link, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.
Q: Can courts recognize the biological father as the only legal father?
A: The short answer is no. The system could designate a man other than the biological father as the father of the child. Determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from straightforward to downright complex. Making this determination in a lawsuit often involves heated arguments on both sides.
The legal standard for paternity varies from state to state. While we’ll cover the basics below, you should investigate your state’s laws in order to make an informed determination about your family situation.
There are several legal classifications of fathers. Once established, paternity is difficult to change, and unless there is a private agreement between the father and mother to the contrary, fathers must legally pay child support.
An acknowledged father is the biological father of a child born to unmarried parents. These parents admit that he’s the father. In some jurisdictions, an acknowledged father and the birth mother can sign a declaration of paternity to establish paternity. The man then becomes a declarant father. Acknowledged and declarant fathers are obligated to pay child support.
Generally, “presumed father” is the most contested categorization of fathers. There are four circumstances in which a man is presumed to be the father of the child:
- He was married to the mother when the child was either born or conceived;
- He attempted to marry the mother in apparent compliance with the law when the child was either born or conceived, but technical reasons invalidate the marriage;
- He married the mother after the birth of the child and agreed to have his name put on the birth certificate or agreed to support the child; or
- He welcomed the child into his home after birth and openly holds the child out as his own.
A father who’s not the biological or adoptive father, but who has a close relationship with the child, or where the relationship is encouraged by the biological parents, is an equitable father. Non-biological fathers during divorce proceedings generally make this legal claim.
The doctrine of the equitable parent derives from the understanding that a child and a non-biological parent may have such a close parent/child relationship that the court will grant the equitable parent custody rights. It seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.
These three requirements let someone be recognized as an equitable father:
- The father and child mutually acknowledge a relationship as father and child;
- The father desires to have the rights afforded to a parent; and
- The husband is willing to take on the responsibility of paying child support.
Not all states recognize equitable fathers, so be sure to investigate your state’s laws and/or contact an attorney in your state.
Historically, unwed fathers have enjoyed fewer rights with respect to their children. If an unwed father wishes to retain rights with a minimum of court intervention, he should acknowledge his paternity and, if possible, come to an agreement with the mother confirming his status. If another man becomes the presumed father, retaining full rights for the unwed father becomes difficult.
Assuming that there isn’t another man who seeks to be named the child’s father, the unwed father can retain visitation rights and seek custody of the child.
Q: If I legally establish that a man is my child’s father, is he responsible for child support? How do I get it from him?
A: If paternity is established by one of the methods above, the father is required to provide child support. The father also gets visitation rights and can seek custody of the child.
Once paternity is established, if the father refuses to pay child support, or does not provide enough, he’ll be subject to enforcement measures. All states have child support or child welfare agencies which can track down “deadbeat dads” through a variety of methods, including Social Security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don’t pay child support.
Q: If I helped raise a child and later discovered they weren’t mine, can I sue the mother?
If a father raised a child who the mother led him to believe was his own and later discovered the child was not his biologically, he may be able to sue the mother. However, winning such a lawsuit would be difficult at best.
The case would most likely rely on relevant state laws and whether the mother knew the child was not his and knowingly misled him. Regardless, the advice and assistance of a legal professional who specializes in family law would be extremely valuable for a father in this kind of sensitive situation.
Q: What if I can’t afford to file a lawsuit for paternity?
A: Fees required to bring a paternity suit can be costly. There is the cost of legal representation. Depending on where you live and its paternity test processes, you might be required to pay for the testing. Some states have mechanisms which allow paternity suits to be filed by the state at no cost to the mother seeking to establish paternity.
State child support agencies will file the paternity suit on your behalf. Many of these agencies are funded by the federal Temporary Aid to Needy Families (TANF) program. Find out more about TANF and the state agencies which administer the program at the Federal Office of Family Assistance. This is not an exhaustive list, so be sure to explore your city, county and state child support agencies to find out more.
Get Legal Assistance With Your Paternity Matter
Establishing paternity is an important part of the court system as it’s one way to protect children and enforce the legal responsibilities of parents. The process for establishing paternity can differ among the various states.
In order to understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.
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*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.