How to Establish Paternity

By: LawInfo

Published: 08/2009

With steadily rising numbers of children being born out of wedlock, and a society that no longer stigmatizes having children outside of a marriage, paternity courts are overrun with unmarried litigants seeking to establish paternity, custody, visitation, child support and related matters regarding their children. Fortunately, paternity court is not the only means of establishing paternity, and family laws are changing to accommodate the reality of unmarried parents and their children.

In general, state laws provide for both voluntary and involuntary paternity proceedings. In order to ease the establishment of paternity, many states in recent years have provided a mechanism by which a putative father, or the alleged father of a child born out of wedlock, can voluntarily establish paternity by executing a sworn paternity affidavit or acknowledgement, which, when completed, establishes the father as the legal father of the child. Many couples who are unmarried, but intend to reside together with their child as a family unit, choose to execute such an affidavit or acknowledgment and/or otherwise place the father’s name on the child’s birth certificate, thus obviating the need for formal paternity proceedings in court. The downside to paternity affidavits, however, is when the parents’ relationship sours, and while paternity has been established, there are no formal court orders regarding custody, visitation, and/or child support. In this case, the family must visit the family court in order to establish applicable court orders regarding their child(ren).

All states laws also provide for the establishment of paternity through formal court proceedings, whether it is on a voluntary or involuntary basis. Typically, if paternity has not been otherwise established by affidavit or acknowledgment, the parties are given the opportunity to undergo genetic testing, or DNA testing, in order to determine whether a putative father is the biological father of a child. Given the accuracy of DNA testing, participating in a DNA test usually resolves the issue of whether a putative father is in fact the biological father of the child. The parties then would proceed to a court hearing at which paternity is established, and orders are issued regarding custody, visitation, child support, and/or other related issues.

Additionally, many states presume that if a child is born during a marriage, then the husband is the father of the child. In some states, this presumption can be rebutted by undergoing DNA testing, which can conclusively prove otherwise. However, in other states, there is no DNA testing or other method to disprove paternity that is legally available if a child was born during an intact marriage, even if all parties concerned know that the husband is not the biological father of the child. This can lead to non-biological fathers being responsible for the needs of the children, including the legal duty to pay child support in some instances.

A similar situation arises when a putative father signs the paternity affidavit or acknowledgement, while at the same time realizing that he is not, or at least might not be the biological father of the child. Likewise, a putative father might rely on the mother’s assertions that he is the only possible biological father of the child in choosing to sign the informal documents needs to establish paternity. In many jurisdictions, such a father is the legal father of the child, even if it is later proven or alleged that he is not the child’s biological father. In these cases, there may be no legal recourse for a legal father who is in fact not a biological father, and who is bound to legally support the child throughout his or her minority.