Family Law

Establishing Paternity

By Amy Castillo, J.D., University of Minnesota School of Law
How do you protect your child--and yourself--when you're unmarried and having a baby?

Establishing Paternity

When a married couple has a baby, the newborn is legally “presumed” to be the child of both the mother and the father. But if parents are unmarried when they have a child, that child does not automatically have a formal relationship with the father. This article will discuss paternity, why it’s important, and how parents can establish it.

Establishing Paternity

“Presumptions of paternity” are legal assumptions that a man is the father of a child. The oldest and most common presumption is the one previously mentioned: if a child is born while two people are married, the husband is legally presumed to be the father. But there are also other ways to establish paternity. Some of the most common are:

  • blood and DNA testing establish an overwhelming likelihood that a man is the father of a child.
  • both parents sign a “recognition of parentage,” “acknowledgement of parenthood,” or “declaration of paternity” on a state-approved form, in which both parents agree to the identity of a baby’s father, and sign their names in front of a witness.
  • a man “holds the child out” as his own (meaning, he cares for the child, provides financial support, and treats it as his own) for a period of time, or
  • the father and the mother agree to place the father’s name on the child’s birth certificate.

In some cases—typically when a father resists admitting paternity of a child—a judge or magistrate has to adjudicate the child’s parentage, meaning that the court will make an official order declaring that a child belongs to a man and linking them to each other legally for all time.

Why is Paternity Important?

In most states, when a child is born to unmarried parents, the mother retains sole physical and sole legal custody of the child unless and until paternity is established. This means that the mother has complete discretion to make important decisions for the child, to keep the child with her, and to give the father only such visitation as she wants him t

o have. If a father wants to have a relationship with his child and a voice in the child’s upbringing, it’s vital for him to establish paternity and ask for custody.

Children can benefit greatly when parents establish paternity. When a man is adjudicated to be the father of a child, the child is entitled to a relationship with that man and to child support and medical support, among other things. In some states, mothers are also eligible to receive “costs of confinement” when paternity is established, meaning that the adjudicated father is made responsible for a fair portion of the medical expenses and lost wages incurred by the mother during pregnancy and post-labor.

In addition, and importantly, when paternity is formally established a child is entitled to the father’s medical history.

When to Establish Paternity

If an unmarried couple has a child, it’s advisable to establish paternity as soon as possible. This enables the true father to be part of the child’s life from the very beginning, rather than a distant, absentee figure. It also ensures that the child will not grow up in poverty due to lack of financial support from a parent. Finally, prompt adjudication will prevent the father from accumulating an oppressive amount of arrears as the child ages and child support adds up from month-to-month.

If you have more questions about paternity, contact an experienced family law attorney as soon as possible.

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