Paternity is the legal and social acknowledgement of the parental relationship between a child and his or her father.
At common law, a child born during a marriage was presumed to be the husband's child. This presumption could be overcome by evidence that the child was not the husband's child.
Where paternity of a child is in issue, any party in interest, the mother, the father, or the child, can ask the court for a determination. That means a lawsuit can be brought by a private party or by the state. A private action for paternity is usually brought by the mother in order to get support. The state will bring an action through a prosecutor's office when the mother applies for public assistance in order for the state to be reimbursed for the aid given.
A person identified as the child's father in a paternity suit is called the "putative father."
When the suit names the putative father as a defendant in a paternity case, he has a choice of either consenting to the entry of a paternity judgment or contesting the action.
Acknowledging Paternity by Consent
In order for the putative father to consent, he must sign an Affidavit Acknowledging Paternity, which establishes the legal relationship between the father and the child. When the putative father consents to a paternity order, he consents for life. Most courts will not allow him to escape the consequences of the order, which include child support, even if it is later proved that he is not the child's biological father. If you consent to being named as the child's father, be sure that you are willing to live up to that responsibility no matter what you may learn later. That is why it is imperative that you seek the advice of an attorney in your area before consenting.
If the putative father denies that he is the father or is not sure, DNA tests based on a cheek swab conducted on him, the mother, and the child can indicate a probability of paternity. The tests can exclude a man who is not the biological father and show the likelihood of paternity if he is not excluded.
DNA testing has become the most powerful test for determining paternity and is admissible as evidence in paternity trials. The percentage of probability varies from state to state, but it is usually from 95 to 99 percent. That means that if the test determines that the probability is that percentage or higher, paternity is presumed. The burden is on the putative father to rebut the presumption, a very difficult task.
Uniform Parentage Act
Although all states have some sort of uniform parentage act, only Delaware, Texas, Washington, North Dakota, Utah, Oklahoma, and Wyoming have enacted a version of the most recent law, the Uniform Parentage Act of 2002. This Act provides a scheme for voluntary acknowledgement and standards for genetic testing.
Refusing the DNA Test
Most states have laws that give courts the power to order the putative father to submit to DNA testing. You can be found in civil contempt for refusal to obey a court order. This can mean a fine and/or jail time.
Paternity can be established by default when the putative father fails to attend a court hearing or go for testing after he was properly served with notice. Paternity can also be established in some states by publication of the putative father's name in the newspaper. Check with an attorney in your state about what happens if you refuse to take the test.
Benefits of Establishing Paternity
In addition to child support, paternity establishes emotional, social, and economic ties between the father and the child. Once paternity is legally established, the child gains certain legal rights and privileges.
Special reasons for establishing paternity include:
- Benefits - The child may be eligible for an inheritance, medical and life insurance benefits, and rights to social security and veteran's benefits.
- Medical history - It is crucial to the child's health for the doctor to have knowledge of the father's medical history. Knowing the family's full history of diseases, illnesses, and birth defects can help the doctor if the child becomes sick.
- Identity - It is important for the child to know who his or her father is. This will help make the child more secure.
- Father figure - Studies have shown that fathers play an important role in the lives of their children. Children who have a father figure in their lives are more likely to stay in school and avoid drugs and crime. They are also more likely to grow up to be responsible adults.
Death of Father before Paternity is Established
If the putative father dies before paternity is established, genetic testing can still be done if some genetic material of the father, such as blood or tissue sample, is available. It might also be possible to do genetic testing on the paternal grandparents.
Paternity fraud occurs when a man is falsely identified as the only possible biological father of a child because the mother withholds information that there may be more than one putative father. That is why it is very important if you are served with paternity papers, you should insist on DNA testing. Through DNA, a large number of men have discovered that the child was not biologically theirs. Estimates reveal that almost 33 percent of men who have taken DNA tests are found not to be the biological father of the child.
Statute of Limitations
Some jurisdictions have placed a statute of limitations on bringing an action for paternity. Therefore in order to protect your rights as a father, mother, or those of your child, it is important that you check with an attorney in your state regarding paternity laws.