Paternity is the status of being someone’s father. The law of paternity is complex and varies from state to state. There is legal paternity, which entails a legal obligation to support a child and rights to custody and visitation, and biological paternity, which is the biological fact of having fathered a child.
Most states categorize fathers in the following ways:
In most states, a person who wants to establish legal paternity brings a paternity action. This is a civil action that seeks to establish a man’s status as the father of a child. Paternity is established by a preponderance of the evidence in a civil paternity proceeding. This means that, given the evidence presented, it is more likely than not that the man is the child’s father. Some states require clear and convincing evidence of paternity. These different standards are not often referred to in actual paternity proceedings because courts mostly accept and rely on paternity tests to establish paternity.
Paternity may be established in many ways, including but not limited to:
Again, the law varies from state to state but generally the law presumes that if the mother of a child is married at the time of the child’s birth, the spouse of the mother is the other legal parent of the child.
This rule is known as the “marital presumption of paternity”. This means that the spouse of the biological mother is the other legal parent of a child because they are married. This is true even if the spouse is not in fact the biological father or the mother and spouse are later divorced.
A paternity case is still possible. The paternity case can be brought by the mother who believes that someone other than her legal husband is the father or by the man who believes that he is in fact the biological father of the child.
Paternity may be established in a number of ways, including the following:
A complaint to establish paternity is usually, but not always, motivated by the need to require the father to pay child support. In some states, it is referred to as a “parentage action.”
In most states, the following people or agencies can file a petition to establish paternity of a child:
If the case is brought in a state where a person who wants to establish a father’s paternity files a petition, the person who starts the case is called the “petitioner.” The alleged father in the case is the “respondent.”
Filing a lawsuit for paternity is not necessary to establish paternity. There are other ways to go about it. Paternity can be established through the consent of the mother and father. A mother can list a father by name on a child’s birth certificate at the time of its birth. This is not enough in itself to establish paternity but it may establish a paternal relationship if it is not challenged.
Or, a man whom the mother claims to be the father may sign a voluntary acknowledgement so that the father’s name is added to the birth certificate. This establishes paternity for legal purposes. A mother and father who are not married may also voluntarily enter into a voluntary agreement through their attorneys which establishes a paternal relationship; the agreement could also spell out custody and visitation arrangements, as well as child support.
If these measures have not been taken, then the mother, father, the child or a social service agency can file a lawsuit or, in some states, a petition to establish paternity.
There is no statute of limitations for paternity actions in Arkansas, Massachusetts, North Dakota Oregon, Texas, Utah, and Wyoming. There are statutes of limitations in the other states for paternity actions. In all states a paternity action must be brought before the child reaches the age of 18 and in many states, the statute of limitations is several years beyond that.
Nonetheless, a person who wishes to establish the legal paternity of a child should file suit or file a petition, whichever action is appropriate in their state, as soon as possible.
As with any court action, it begins with preparing the necessary documents as required by the court, filing the documents with the court and then serving the documents on the opposing party. If the father is prosecuting the action, the father would serve the documents on the mother of the child. If the mother, the child or a government agency is filing the action, then the documents would be served on the father. A lawyer for paternity lawsuits could be very helpful in making sure that a paternity suit is necessary in a person’s case, in preparing documents and in complying with all local court rules.
The court will set a date for hearing. Usually, proof would depend on having a paternity test done. The court can require the father to have a paternity test done and to submit the results to the court. The court will rely heavily on the results of the DNA test to decide the question of paternity, because it is 99 percent accurate.
A person who is found to be the father of a child will also be ordered to pay child support in an amount that the court will determine. If the father also wants to have custody or visitation rights, the court can decide these issues as well.
Keep in mind that a paternity action is not necessary if one of the following is true:
A father should understand that establishing his paternity could make him liable for paying child support and possibly back child support.
If a person wants to establish the paternity of a child, it is wise to consult an experienced family law attorney before starting. It is important to share the facts of your case with an attorney who can explain to you how paternity is established in court and what all of the consequences will be.
An experienced family law attorney can also explain the process to you; the attorney may be able to negotiate a solution to a paternity dispute without the expense and bureaucracy of a lawsuit. You may get the best possible outcome if you have an experienced family law attorney representing you.