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The Divorce Encyclopedia

Term Definition Paternity - the establishment of a legal biological relationship of father and child.
Application in Divorce Usually biological, paternity can be imposed by a court on a man who has no biological ties to the child when a man has presented himself to the world as the father of a child.

Unlike maternity, which is never in uncertain from a legal standpoint, paternity can become very much an issue in doubt. The question of paternity may give rise to a paternity suit, which is a legal action to determine whether a man is the father of a child born out of wedlock. The purpose of this action is to enforce support obligations.

Courts hold men to a strict liability for a child that results from their sperm. A man cannot claim that he is but a contractor if he impregnates a woman at her request and then argue that he is without a responsibility to support the child. Nor can the woman who becomes pregnant in this arrangement waive child support. Courts have ruled that, outside of the jurisdiction’s statute on artificial insemination, a man cannot waive his parental rights (or the responsibility of child support), nor can a mother. To do so goes against public policy.

Questions about paternity happen frequently when the parties make misrepresentations to one another, and these misrepresentations create court actions based on the doctrine of paternity estoppel. Under paternity estoppel, a man cannot present himself to the world as the father of a child, and then change his mind at some later date in the event the he discovers in some way that he is in fact not the biological father of child. Paternity estoppel also prevents a mother whose romantic involvements may have changed from denying the paternity of a man she formerly named as the father of her child.

Paternity estoppel comes into play when 1) one party misrepresents paternity and 2) makes that misrepresentation with actual on constructive knowledge of the truth concerning paternity; 3) when the misrepresentation is made in a way that is "both natural and probable that it will be relied upon by the other party or the child"; 4) when either the presumed father or child relies upon it in a way that 5) "was reasonable under the facts"; and 7) that reliance resulted "in injury."

Paternity estoppel applies the principals of equitable estoppel to a paternity case. Unlike equitable estoppel, however, which seeks to punish a person who makes misrepresentations, paternity estoppel may penalize a victim of misrepresentation: a man who is the putative father and who enters into a parent-child relationship based on the child’s mother’s assurance of his paternity. This man may find himself forced to continue that relationship even after his paternity has been disproved.

Technological advances such as DNA testing have made paternity a question of science, not law. These advances have undermined Lord Mansfield’s Rule, which render inadmissible the testimony of either spouse as to whether a husband had access to his wife at the time of conception. In some jurisdictions, Lord Mansfield’s rule has been abandoned.

See Parentage and also Lord Mansfield’s Rule.

Resources: Same as Paternity Establishment.

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