PATERNITY: WHO IS THE FATHER?
Issues with Paternity can sometimes be messy, especially when the child is born out of wedlock. Just because someone is the biological father, doesn’t necessarily mean that they are the legal father of a child. In these cases, whether a person is the father of a child has to be adjudicated in a court of law. Paternity must be established first, in order to make a custody or child support ruling. The Paternity Lawyers at Garrett, Walker, Aycoth & Olson, Attorneys at Law are here to help you with establishing Paternity.
What is a Presumed Father?
The presumed father is one who is seen as being the father of the child in the eyes of the law. As such, it is assumed that he is the father for any custody or child support actions. The husband of the mother of the child is presumed to be the father of said child if the child is born during the course of the marriage. This presumption can only be rebutted by clear and convincing evidence, generally in the form of DNA testing.
What is a Putative Father?
The putative father is someone who is alleged, purported, or reputed to be the biological father of a child born out of wedlock, but has not gone through the process of being legally established as the father. The putative father can be placed on the birth certificate of the child if he signs an Affidavit of Parentage. An affidavit acknowledging paternity doesn’t lead to the legal presumption of him being the father, but it has the legal effect of establishing paternity for the purpose of establishing an obligation for child support. A putative father has the right to revoke his affidavit of paternity within 60 days of signing said affidavit.
How Do I Establish Paternity?
For children born out of wedlock, paternity may be established through the court system. The most common forms of paternity actions take place because either a mother is trying to establish paternity for child support purposes, or a father is trying to establish paternity for custody purposes. As such, typically a motion for paternity testing is filed with a complaint for child custody. If there is a presumed father of the child (for example, if the child was a result of an affair while mother was still married), then he must be served. If the other party does not consent to a paternity test, then the motion will be heard by a judge.
In order for a judge to order the parties submit to DNA testing, she must find that there is ‘good cause’. Typically testifying that there was a sexual relationship between the reputed father and the mother at the time of the child’s conception is enough to find good cause. The court has the discretion to apportion the cost of the DNA testing to whichever party it sees fit. DNA testing must take place at a testing facility that is fully certified to do so (typically DNA testing facilities will advertise whether their tests can be used in a court proceeding). A man is presumed to be a child’s father if DNA testing indicates a > 97% probability of parentage. Once a genetic test has been taken and the reading shows that the man is the child’s father, a court will enter a judgment adjudicating that the man is legally the father of the child.
To learn more about the statute and laws governing paternity – you can read about the statute here: Paternity Statute
Should I File for Paternity?
It depends. If you are in need of child support, then filing for paternity may be the first step to getting the father to pay that support. The reverse is also true; if you are a father seeking custody of a child born out of wedlock, then you might need to establish paternity. However, once paternity is established, you could expose yourself to a child support obligation. Each individual case is different, and you should speak with an attorney before taking any steps towards establishing paternity. If you would like to speak with an attorney regarding paternity, custody, or child support call Garrett, Walker, Aycoth & Olson, Attorneys at Law today to set up a consultation with one of our family law attorneys.