Paternity Issues Facts and Tips
Two Sides to the Story
Typically, paternity rights become an issue when an unmarried woman gives birth to a child and seeks to establish legal paternity to obtain child support, or when a man maintains that he is the father of a child and desires to exercise his own legal paternity rights.
Very often, the unwed mother of a child desires to establish paternity to ensure that the child receives financial support and because she wants the father involved in the child’s life. In such circumstances, the mother files a petition with the court naming the individual who she believes is the father of the child (the "putative father") and who is then asked to submit to DNA testing. If the putative father agrees, the case proceeds. If he does not, the court orders testing. If the putative fails to appear or respond, the court enters a default order declaring him the legal father who must pay child support.
DNA testing is now very easy, and it is 99.9 percent accurate. A buccal swab of the inside of the mouth of the putative father and the child collects genetic material. A number of laboratories across the United States undertake DNA testing in paternity cases. Generally the results of the test are returned to the court in four to six weeks.
In many states, the husband of a married woman who bears a child is automatically presumed to be the father. This presumption of paternity makes him the putative father. Some jurisdictions take the presumption of paternity one step further by not allowing a man to disprove biological paternity through DNA. As a result men who are not the biological fathers of the their wife’s children are forced to pay child support for children they have not biologically fathered.
Lord Mansfield's Rule
Most states still have Lord Mansfield’s Rule on the books, a British law created in 1777 that defines a child born into a marriage to be a product of that marriage. Specifically, Lord Mansfield’s Rule bars the mother of the child, and her legal husband at the time the child was conceived or born, from giving testimony that might prove that the child is illegitimate, i.e., that the child is the natural child of a man other than the husband. About five states have abolished this rule. It is still on the law books of the other 45 states.
Dad's Not Really Dad
Some experts contend that there is about a 10% to 20% chance that any child born to a married woman has a biological father other than the husband. For obvious reasons, exact figures are not available. Note that these are estimates for each child, not each wife.
A man who wishes to acknowledge paternity – and therefore accept responsibility for the child and pay child support until the child reaches the age of majority – does so by signing a Declaration of Paternity (sometimes called an Acknowledgment of Paternity). This documentation is also necessary in order to have the father's name placed on the child's birth certificate, if desired. The father can complete an affidavit of paternity any time between the birth of the child up until the child turns 18.
When the Father Denies Paternity
When the alleged father of a child does not voluntarily acknowledge paternity, the mother can establish paternity in a number of ways, including testing. If test results indicate that the alleged father is the biological father of the child and he does not contest the results, those results will then be recognized as a conclusive determination of paternity, generally after 60 days. When the alleged father does not submit to genetic testing, he may be determined to be the child's father by default.
Doctrine of Strict Liability
Courts have universally decided that a man’s allegations that a woman deceived him (about fertility and the use of birth control) are completely irrelevant to paternity and support. A man is, as one legal observer puts it, "strictly liable for where his sperm ends up when he voluntarily engages in a sexual act." The doctrine of strict liability emanates from cases where men voluntarily impregnate women at their request.
No Consent Agreement
A man cannot enter into a consent agreement with a woman to impregnate her, and then contend that he is but a sperm donor without a responsibility to pay support, nor can the woman who becomes pregnant as a result waive child support. Courts have ruled that, outside of artificial insemination, a man cannot waive his parental rights (or the responsibility of child support), nor can a mother.
Resources & Tools
CHILD SUPPORT – Very often, the unwed mother of a child desires to establish paternity to ensure that the child receives financial support and because she wants the father involved in the child’s life.
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Women's Rights Manual for Divorce
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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